OPINIONS
of
THE ATTORNEY GENERAL
1948- 1949
EUGENE COOK
Attorney General
EnwARD E. DoRSEY and
MARGARET L. ELEY Compilers
Printed by TYLER & CO. HAPEVILLE, GA.
IN MEMORIAM This volume is respectfully and affectionately dedicated
to the memory of ROYAL A. McGRAW
AND C. MARION DOBBS who died in the service of the Law Department in 1948. Their unfailing devotion to duty was an example to us all.
II
REGISTER OF DEPARTMENT OF LAW 1948- 1949
EUGENE COOK Attorney General
H. E. NICH 0 LS......____________---------------- _______________________________1948
R. A. MeGRAW------------------------------------ _____ ----------------------1948 CLAUDE SHAW________________________________ ------------------------------19 48
J 0 HN SAMM0 NS BELL...------------------------------------------------19 48 E. E. DORSEY_ ___ _______ --------------- .___________ ______________________1948
A. J. HARTLEY_____ ----------------------------------------------------------1948-1949 WRIGHT LIPFORD__ ... --------------------------------- __ . ________________1948 HENRY N. PAYTON_ -------------------------------- ____________________1948 C. M. DOBBS _________ ------------------------------------------- ________________1948
E. L. REAGAN__ ---------------------------- ______ --------------------- ____1948 M. H. PEABODY... ------------------------------ ______________ --------- ..1948-1949 DAN P. WINN. ____________ . ____________ ----------------------- _____1948 M. H. BLACKSHEAR, JR.. _______________________________________________1948-1949 R. L. SMITH_____ _ ___________________ ------ __________________________1948
J. T. GRICE ___ __ __ ________________ _________ _ _____ -- --------------------- 1949 R. L. ADDLET0 N__ ______________ ______________ __ _________________________.1948-194 9
J. R. PARHAM__________ --------------------------- ______ ____________________ W. V. RICE.___________________________________________________ __________________ T. V. WILLIAMS______________________________________________________________ H. G. SIMMONS_________________________________________________________________ PRESTON RAWLINS._______________________________________________________ CAM DORSEY_________------------------------- _______________ ___________________
1949 1949 1949 1949 1949 19 4 9
FRANK B. ST0 W----------------------------------------------------------Assistant Attorneys General
1949
III
ATTORNEYS GENERAL
Henry P. Farrer ~~~~~~~~~~~~~~~~~~~~~~~----~~~~~~~~ ~~~~~~ -~~~~~~~~~~~~~~~~~- ~~18 68-18 72 N. J. Hammond ~-~~~~~-~~~~-~~~~~~-~~~~~----~~~~~~~~~~~~~~~~~~~~-~~-~~~~~~~~~~~ 1872-18 77 Robert N. Ely ~~~-~~~~~~~~~~~~~~~~~~~~~~~--~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~- -~~~~~ 1877-18 80 Clifford L. A~derson ~~~~~~~~~~~~~~~-~~----~~~~~~~~~~~~~~~~-~-~~~~~~~~~~~~~~ 1880-1890 George N. Lester ~~~~-~~~-~~-~ ~~~~~-~-~-----~~-~~~--~~--~~~~~~~~~~-~~~~~~~~-~-18 90-1891 W. A. Little ~~~~~~~~~~-~---~-~~~~--~-~~~~-------~~~-~-~~~~-~~ ~~~~-~~~~-~~~~ ~-~~~-1891-1892 J. M. Terrell ~~~~~~~~~~~~-~~~~~~~~~--~~~~-~~~---~~~~~~~-~~~~~~~~~~~~~~~~~~~~-~~~~~~ 1892-1902 Boykin Wright ~~~~-~~~-~~~-~~~~~~-~~~--------~~-~~-~~~~ --~~~~~~~~~~-~~~~--~~~-~~ 190 2-19 02 John C. Hart ~~~-~~~-~~~~~~-~~~-~~~~~~-~~--~~----~~--~~--~~-~~~-~~~~~~~~~~~~~~~~~~~ 1902-1910 Hewlett A. Hall ~~~~-~~~~~~~-~~-~-~~~~~-~-----~~~~~~~~~ ~--~~~-~~~~~--~~~~~~~~~~191 0-1911 Thos. S. Felder ~~~~-~~~~~~~~~~~~~~-~~~~~-------~-~~~~~~~~ ~~-~~ -~- ~~~~~~~~~~~ 1911-1914 Warren Grice ~~~--~~~~-~~~~~~-~~~~~~~~~~----~~~~~-~~~--~~~~~~~~~~~~~~~~~~-~~~ 1914-1915 Clifford Walker ~~~~~~~~~~~~~~~~~~~~-~~----~~-~~~~~~~--C~~~~-~~~--~~~~~~~~~~~~ 1915-19 20 R. A. Denny ~~~ ~~-~-~~~-~~~-~~~~~~-~~~~-----~~~~~~~~~~~-~~~ ~~~~~~~--~~~~~~~~~~ 1920-1921 George M. Napier ~~~~~-~-~-~--~~~~~~~-----~-~-~-~~~~~~-~~~~-~~~-~~~~~~~~-~ __ 1921-1932 Lawrence S. Camp --~~~~-~- ~--~~~~~~~~~~--~-~~-~~-~~~~-~~~~-~~~~~~-~~-~~-~ 1932-19 32 M. J. Yeomans ~~~~~-~~~~~~-~~~~~~~-~~~~~~-~~~--~~~~~~~-~-~~--~~--~~~~-~~-~~~~----19 33-19 39 Ellis G. Arnall ~~~~-~-~~~~~-~~~~-~~~~~ -------~~~~~~~~~~~-~~~~--~~~-~~~--~~~~~-~~~~ 1939-1943 Grady Head ~~~~-~~~-~~~~-~~-~-~-------~~~~---~~ ~-- ~--~~~~~~~~~~-~~~-~~~~-~~~~~~-1943-1945 Eugene Cook ~~~~~~~~~~~~-~~~~~--~~~----~-~~-~-~~~~~~~~~~~~~~-~---~~ ~~~-~~~~~~~ 1945
IV
TABLE OF CONTENTS Part I. Report of the State Department of Law
for 1948-49 ____________________________________________________VII Part II. Opinions of the Attorney General, 1948 ____________1 Part III. Opinions of the Attorney General, 1949 _______ _427 Part IV. List of appellate court cases ----------------------------736 Part V. Index to opinions --------------------------------------------741
v
PART I Report of the Operations of The State Department of Law
1948 - 1949
VII
INDEX Duties and Powers of the Attorney General and
the Department of Law -------------------------------------------- IX Important Cases Handled in 1948-49 ----------------------------- XII
Extradition Cases _________ .____ ___________ __ ________ _________ __ ___ __ ___ XII The Ocmulgee River Case ---------------------------------------- XII Southern Bell Telephone and Telegraph Co.
v. Georgia Public Service Commission ____________ XIII
-
Zorn v. Walker ---------------------------------------------------------- XIV McLendon v. Everett ------------------------------------------------ XIV The Georgia Railroad Case -------------------------------------- XV Summary of Cases, Opinions, and Bills prepared for General Assembly during 1948-49 ____________________ XVI
VIII
DUTIES AND POWERS OF THE ATTORNEY GENERAL AND THE DEPARTMENT OF LAW
Prior to the Reorga:tYzation Act of 1931 each State agency employed 1ts own attorneys. The Attorney General's duties were limited to the few then specified in the Constitution and laws. By the Act of 1931 and later amendments, the Department of Law was created, the Attorney General was made its chief, the legal affairs of the State were entrusted to it, and except in a few instances, employment of counsel by individual State agencies was prohibited.
Section 40-1614 of the Annotated Code of Georgia provides that: "The Department of Law is hereby vested with complete and exclusive authority and jurisdiction in all matters of law relating to every department of the State other than the judicial and legislative branches thereof. The several departments, commissions, institutions, offices and boards of the State Government are hereby prohibited from employing counsel in any manner whatsoever."
The Governor is empowered, with the consent of the Attorney General, to employ special counsel where deemed necessary. This is done at times where highly specialized and technical knowledge is required, as in rate cases; where, for some reason, local counsel can more efficiently cope with local conditions, as in cases involving land titles; and in other cases where limited time, the importance of the issue and like factors make additional counsel advisable for the best interest of the State. Such appointees are known as Deputy Assistant Attorneys General, and are appointed to deal with special cases or to represent special branches of the State Government for a limited time; but the bulk of the State's legal affairs is handled by the comparatively small regular staff of the Department, which is largely responsible for the value of the Department to the State, as demonstrated by the figures contained herein.
In addition to actual litigation, the Attorney General has imposed upon him by Constitution and Code some forty-five specific duties, such as the approval of certain bonds and insurance policies, acting as a member of the Department of Public Safety, the State Hospital Authority and other agencies, the approval of contracts, the preparation of deeds, and similar duties in relation to State .business such as a lawyer generally performs for his client.
IX
One of the most important of his functions is complying with the requirement of law that he give: his opinion to the Governor or the head of any Department of the State, when requested to do so, on any question of law connected with the interest of the State. Since these opinions guide the State agencies in applying the law to the activities of their respective departments, the administration of which often vitally affects the public, they are prepared and released only after intensive research. These are known as "official" opinions, and are binding unless, if challenged in Court they are reversed by judicial decision, or unless legislative action makes them inapplicable.
The Department receives many inquiries from individuals in Georgia and other States, from municipal and county officials, from civic agencies, information bureaus, persons intending to enter business in Georgia, and others, as to the provisions and interpretations of Georgia laws. Where no actual controversy or litigation is involved and the questioner is seeking only general information, the Department, as a matter of courtesy and service, replies to the question. Such opinions are known as "unofficial" opinions and are not regarded as authoritative or binding upon any person or department.
All official opinions are signed and released by the Attorney General. Unless so signed and released, opinions are unofficial.
The service given by unofficial opinions is not required by law. Georgia has no central information bureau such as exists in many States; and it is felt that the Department, in answering these questions, renders a necessary service to the citizens of our State and distributes information about Georgia to other States, and even to other countries.
DRAFTING OF LEGISLATION
In addition to the duties which the Law Department is required by law to perform, the Attorney General has set up a unit within the department for the drafting of legislation. Since its inception as a comparatively small endeavor, this service has grown rapidly. Several members of the Attorney General's staff are assigned to serve with the Legislative Bill Drafting Unit shortly before every session of the General Assembly and remain at its call during the
X
session. Budgetary requirements which trend to limit the number of staff members which the Attorney General may employ have made it impossible for this unit to serve on a full-time basis, and, in fact, has caused all members of the department to perform an additional function. However, the results of this legislative service have been very successful; in fact, overwhelmingly so.
The difficulties incident to the drafting and enactment of complicated legislation call for legal knowledge of a highly technical nature. By developing experts on this subject within the department and making their services available to all members of the General Assembly, much legislation which otherwise would have been unclear or even unconstitutional has been properly drawn and will withstand attack in the courts.
Thus, the expense to the State of passing poorly drawn legislation, with the possibility of its being declared unconstitutional, has been obviated. The Governor, the Attorney General, and leaders in the General Assembly have uniformly expressed their approval of this unit and its work. It is to be hoped that it will be perpetuated by the Assembly in the future by the passage of appropriate legislation and budgetary allotments.
XI
NOTABLE CASES
EXTRADITION CASES In 1949 a number of escaped felons were separately captured in
several northern states. When Governor Talmadge was notified of their capture, he made requisition for extradition to the governors of the states wherein the escaped convicts had been captured. Following a uniform pattern, these convicts, all of whom were Negroes, made application for the writ of habeas corpus, and stated as their grounds therefor accusations that they had been cruelly and unusually punished in the Georgia prison system by being beaten, starved, chained, shot at, and otherwise tortured. Upon investigation it was found without exception that these charges were false. Inasmuch as the cases were geographically widespread, it was decided to select one case arid litigate it through the Appellate Courts to the United States Supreme Court, and thereby establish a precedent which would be binding on all other courts everywhere. This was successfully done in the case of Dye v. Johnson, 338 U.S. 864, wherein the Supreme Court reversed the United States Circuit Court of Appeals for the Third Circuit, which had, in effect, found Georgia guilty of cruel and unusual punishment of its prisoners. The Supreme Court, in a per curiam opinion, decided that the Federal Courts had no jurisdiction of such applications for habeas corpus until the escapees have exhausted their 8tate remedies. THE OCMULGEE RIVER CASE
In the Ocmulgee River case, in October, 1948, the banks of the Ocmulgee River, one of the principal recreational streams of our State, were flooded with thousands upon thousands of tons of dead fish. Several cases of the death of livestock also were reported. The State Game and Fish Department called in experts from the University of Georgia and the Georgia Institute of Technology and the United States Department of Public Health and the State Department of Public Health to investigate and determine the cause of this tremendous loss of game fish.
It was determined by these agencies that the probable cause of the death of the fish was the discharge into the Ocmulgee River of effluent waste water from the Macon Kraft Company, a huge mill engaged in the making of Kraft paper from pulpwood, located just south of Macon, Georgia.
Mass meetings of sportsmen, game officials, and law enforcement officials were held at several cities along the Ocmulgee River, and the Attorney General was requested to take action to halt
XII
whatever processes were responsible for the death of the fish and livestock.
The problem was both a difficult and a delicate one. On the one hand, it was imperative that the death of the game fish be halted, while at the same time all departments were reluctant to take any action against industry which might discourage other new companies from locating in Georgia.
Fortunately, the Macon Kraft Company extended every facility in cooperation at its command to seek the source of the fish deaths. Working with the State agencies and the Attorney General, all parties concluded that certain irregular discharges of effluent water into the river had been caused by inexperienced personnel at the plant. The Macon Kraft Company pledged that this would not recur. The Attorney General insisted, however, that the agreement be made the order of the court, and this was accordingly done in Bibb Superior Court. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY
v.
GEORGIA PUBUC SERVICE COMMISSION The Georgia Public Service Commission by order fixed certain
rates for the Southern Bell Telephone and Telegraph Company. The Company alleged that the rates so fixed were wholly inadequate and would in fact amount to confiscation of property without due process of law in violation of certain provisions of the State and Federal Constitutions.
This case was one of the lengthiest and most difficult in which the State Law Department has participated. It was highly technical in nature as are most cases involving public utilities.
The case was eventually brought to the Supreme Court of Georgia. That Court held among other things the following:
1. Utility rate making is legislative in nature, and the power to make such rates in this State is by the Constitution and laws vested exclusively in the Georgia Public Service Commission.
2. While courts of equity have and can exercise no jurisdiction to make public-utility rates, yet they do have jurisdiction in all cases properly brought before them to render judgments enjoining confiscatory rates, thus preventing impingement of the constitutional rights of public-utility companies.
3. Where it is shown that utility rates fixed by the Public 8ervice Commission are confiscatory, and, therefore, result in taking the private property of a public-utility company for public use without due process, a court of equity will not hesitate to take
XIII
judicial action and enjoin the enforcement of such confiscatory rates.
4. Under the facts in this case, the rates fixed by the Public Service Commission were confiscatory in nature. ZORN v. WALKER
The Long County Board of Public Welfare dismissed M'iss Ruth Zorn, the County Welfare Director, upon the grounds that she engaged in political activity in violation of the rules and re'gulations of the Merit System. Her appeal to the State Personnel Board of the Merit System was denied. She then sought to enjoin the State Personnel Board and the County Welfare Board from employing a County Welfare Director.
The Superior Court of Long County sustained the demurrers of the State Personnel Board and the County Welfare Board and ordered Miss Zorn's petition dismissed. The case was then brought to the Supreme Court of Georgia and that Court affirmed the decision of the Superior Court.
The Supreme Court pointed out that the .rules and regulations of the Merit System gave ample opportunity for appealing an employee's dismissal by providing that any employee who was dismissed had the opportunity for a hearing before the State Personnel Board.
The Court stated that merely because there was no right of appeal from the decision of the State Personnel Board, the employee's constitutional rights were not violated. McLENDON v. EVERETT
McLendon was convicted for murder and sentenced to death. He .applied to the State Board of Pardons and Parole's for commutation of his sentence to life imprisonment and such commutation was denied.
The Chairman of the Board voted for commutation and the other two members, one of whom was Eugene Wilburn, voted against commutation.
McLendon alleged that Wilburn was ineligible to serve on the Pardon and Parole Board. He relied on Sections 10 and 3 of the Pardon and Parole Act of 1943.
Section 10 reads in part as follows: "No member of the Board or no full time employee thereof shall, during his service upon or under the Board, engage in any other business or profession or hold any other public office; nor shall he serve as a representative of any poNtical party, or executive committee or other governing body thereof, or as an executive officer
XIV
Dr employee of any political committee, organization or associa-
tion, or be engaged on the behalf of any candidate for public office
in the solicitation of votes, or otherwise become a candidate for
public office without resigning from the Board."
Section 3 reads in part as follows:
"The members of the Board shall devote their full time to the
duties of their office."
McLendon alleged that Wilburn was ineligible and disqualified because he was a member of the State Democratic Executive Committee of Georgia and was engaged in the business of bankinJr and farming.
The court held that the office-holder in this case was not ineligible for appointment, nor did he forfe i1 t his office under anyallegation of the petition, because the petition does not show that there was any delay or prejudice to any right of the petitioner be-cause of the fact thqt Wilburn was engaged in the business of banking and farming.
THE GEORGIA RAILROAD CASE
The Georgia Ra'ilroad and Banking Company brought suit against Charles D. Redwine, State Revenue Commissioner, seekin!!." injunction and declaratory judgment declaring the right of the
railroad to be exempt from all taxation other than that specifically stated in its charter, which was granted by the General Assembly of Georgia in 1833.
That charter had exempted the railroad from ad valorem taxa-
tion beyond a specific percentage, much lower than the present ad
valorem rate. The railroad took the position that an attempt by
Redwine to tax it would be unconstitutional as an impairment of
contract existent between the State of Georgia and the railroad
as evidenced by the railroad charter.
-
The State took the' position that the Constitution of 1945 had removed the immunity from taxation enjoyed by the railroad as well as by all other tax exempt corporations.
The same question has been previousiy litigated in the State courts, in which litigation the State has been successful in its efforts to avoid injunction. A three-judge United States District Court dismissed the complaint of the railroad for the reason that it constituted a suit against the State of Georgia to which the State had
not consented.
The case was appealed to the United States Supreme Court, and
at the bar of that court the Attorney General stated that adequate State remedies were available to the railroad without the necessity
of the Flederal court's accepting jurisdiction.
The high court took the' words of the Attorney General at face value, and in an extremely unusual move, continued the case pending exhaustion of the State remedies available to the railroad. This decision was uniformly considered to be a successful termina-
tion of the Federal litigation on behalf of the State.
XV
SUMMARY OF CASES, OPINIONS, AND BILLS PREPARED FOR MEMBERS OF
THE GENERAL ASSEMBLY DURING 1948-1949 (See Appendix-Highway Department)
Total number of cases closed during 1948-49, and pending as of December 31, 1949 --------------------------------------272
Number of cases terminating favorably to the State during 1948-49 _______________________ ----------------- ___________________106
Number of cases terminating unfavorably to the State during 1948-49 ---------------------------- ----------------------- 18
Number of cases settled after litigation begun, or consent order taken ------------------------------------------------ 37
Number of potential cases settled without suit __________________ 4 Cases pending as of December 31, 1949, awaiting
dedsion of Courts ________________________ ---------------- __________ 107 272
Number of official opinions given during 1948-49_________ Approximate number of unofficial opinions during
1948-49 ------ ----------------- --------------- ---------------------------------------Approximate number of bills prepared during 1948-49
for members of the General Assembly ________________________ 610
XVI
PART II Opinions of the Attorney General
1948
XVII
1
AGRICULTURE-Breadstuffs (Unofficial)
No regulations have been promulgated by Department of Agriculture regarding Act as to enrichment of flour.
Mr. Harold E. Snyder
March 1, 1948
I beg to acknowledge receipt of your letter of February 27 in which you
request information in r>gard to compulsory enrichment of bread and bread type
rolls in Georgia, and prohibition of use of flour bag for more than one trip.
Replying thereto I beg to advise that the A!:torney General of Georgia is not authorized, under the law, to give official information upon matters, ex-
cept whEm directed by the Governor or the several State Departments. However,
it gives me pleasure to personally and unofficially enclose herewith the law regulating the mixing of flour, etc. and rules and regulations as to weights and
measures. I am advised by the Department of Agriculture that no rules and regulations in regard to the act as to enrichment of flour, etc. have b>en promulgated at this time.
AGRICULTURAL AND INDUSTRIAL DEVELOPMENT BOARDCitizens Council
The Georgia Citizens Council may not permit the translation into for>ign languages of compilations prepared at the expense of the State.
April 16, 1948 Honorable Lon Sullivan, Director
I am pleased to acknowledge your letter of April 9, in which you ask whether the Georgia Citizens Council has a legal right to permit the translation into foreign languages of its recent booklet entitled, "United Citizen Action to Improve Georgia's Human Resources".
It appe.ars from your request and the cover of the booklet that while Mrs. Sullivan prepared it when she was not an employee of the State Government, she claims no interest in it.
This being the case, your question addresses itself to the powers granted the Georgia Citizens Council by the Legislature. Powers of all public officers are defined by law (Code Section 89-903). The laws creating the Georgia Citizens Council (Chapter 40-23 of the Amended Code) do not authorize the Council to permit others to translatE; compilations prepared at the expense of the State. Since there is no authorization for the Council to enter into such an agreement with others, it would be my opinion that the Council could be prohibited from doing so.
I wish to use this means of congratulating Mrs. Sullivan upon the excellent job she did in the preparation of the booklet and the contributions made to it by the Council. It should be of interest to every person who would like to see our State grow and progress.
2
AGRICULTURAL AND INDUSTRIAL DEVELOPMENT BOARD-Signs Signs of the A. & I. D. B. may be placed or removed only in accordance with the agreement between the Board and proprietors of establishments serving the traveling public.
February 9, 1948
Honorable Erie co*cke, Jr. Executive Director Agricultural and Industrial Development Board of Georgia
This is to acknowledge your two communications of January 28, 1948, wherein you pose and request opinions upon the following questions:
(1) "Are there any legal restrictions on the Agricultural and Industrial Development Board for the placing or later removing of this approved sign in the establishments of businesses serving tourists and the general traveling public within the State of Georgia?"
(2) "To what extent can the AgTicultural and Industrial Development Board regulate the use of this sign for advertising display to an operator after the sign is once presented or removed for cause?"
Due to the similarity of these two questions, they will be discussed together. It is to be undtrstood, of course, that the approved signs referred to in the above questions have regard to the sign formulated by the Agricultural and Industrial Development Board, bearing the words "Approved by the Agricultural and Industrial Development Board of the State of Georgia" and in smaller letters the statement "This sign property of the State of Georgia''. The contemplated purpose of the sign is that itJbe placed in tomis~ "'-acilities and establishments recommended after inspection by an inspector of the Agricultural and Industrial Development Board. It is my belief that the Agricultural and Industrial Development B(oard acted properly within the scope of its statutory functions when it created the described sign. Ample authority for this action may be found in Code Section 40-2108 (b), Georgia Code 1933, Cumulative Pocket Part of 1945, wherein it is to be seen that it is made the duty of the Agricultural and Industrial Development Board "To advertise and promote the - facilities - .of the State" and "to make research and surveys, - and publish information with respect to - facilities and establishments in the State". That a sign such as the one under consideration "advertises and promotes", "and publishes information" with respect to "facilities and establishments in the State" is quite self-evident and needs no further overt justification. The difficulty arises in the use of the sign. If it is to be effective, it should have such statewide use that persons traveling upon the highways of the State would become accustom;d to searching for it and to recognizing its value. This broad use, if it be accumplished, must be effected upon a voluntary basis and by some type of agreement, tacit or otherwise, between the Board and the .owner or lessee of the individual facility or establishment. This is true for the reason that the statute creating the Agricultural and Industrial Development Board and defining its powers and duties does not includE: an authority vested in the Board to enforce submission to its inspections of facilities and establishments; nor does it 'confer the power upon the Board to force proprietors to submit to the posting .of the signs upon their premises. In succinct summation, it is my opinion that the idea from which the afore-
said sign evolved, insofar as it was intended to advertise, to promote, and to publish information regardin'g the facilities and establishments in the State, was lawfully conceived; that the Board has no authority to compel proprietary submissions to its inspections nor to the posting of the signs; that by agreements voluntarily made proprietors may allow such inspections and the posting of the sign; that the sign may be issued, recalled, or reissued by the Board in accordance with such standards and procedures as are contained in any agreement voluntarily entered into by the Board and propriE>tors. The matter resolves itself into an administration function, proper, yet one which must be carried out, if at all, voluntarily and by cooperation from proprietors and not by compulsion of law.
BANKS AND BANKING-Branch Banks 1. In order to open a branch, a State-chartered bank must amend its charter. 2. A branch bank need not secure a permit to do business independent of that issued to its parent bank.
February 26, 1948 Honorable 0. G. Jackson State Superintendent of Banks
I have your letter of February 12, in which you request my opinion on the following quEostions:
"1. May a State chartered bank located in the City of Atlanta open a branch bank without amending i~s charter?
2. Must a branch bank secure a permit to begin business from the Superintendent of Banks before it may engage in banking?"
As to Question 1 above, if the charter of the parent bank does not authorize the corporation to open branches, it is my opinion that it would be necessary for the parent bank to secure an amendment to its charter granting such authority.
The law relating to non-banking corporations grants such corporations the general power to open branch offices. (Georgia Code Annotated, Section 22-1828, paragraph (e) ) , but banking corporations are specifically excluded from the provisions of this law (Georgia Code Annotated, Section 22-1801).
The law covering the chartering of banking corporations contains no such grant of authority to banks to open branch offices or branch banks. Banking corporations, because of the peculiar nature of the public trust which they hold, are somewhat limited in the general charter powers which they receive upon incorporation. For example, before a banking corporation may move its principal place of business the unanimous vote of all stockholders present at the meeting is required. (Georgia Code AnnotatEod, Section 13-1002). Considering this policy of strict regulation of the business of banking, it would seem that before so vital a change in organization and practice as the opening of a branch bank could be accomplished the formal consent of both the stockholders and the chartering authority should be procured by the corporation. The propH method of procuring such consent would certainly seem to be charter amendment.
It is truE> that the Act authorizing branch banks in cities over 200,000 (Georgia Laws 1927, pp. 214-215) does state "Banks chartered under the laws.
4
of this State and having their principal office in a municipa1ity now or hereafter having a population of not less than 200,000 .... may establish branch banks". In my opinion, this is not a direct grant of authori~y to )Janking corporations giving them power to open branches whether or no~ their char.ers so provide. On the contrary, the Act would permit branches only' wlhen the bank .charttts otherwise contain the requisite grant of authority.
As to question 2, Code Section 13-909 states: "No bank shall transact any business as a bank without the written pennit of the Superintendf:nt certifying that such bank has complied with all the requirements of law, ...." This Section requires that the Superintendent shall be satisfied that the am,ount of capital required by law has been subscribed and that provisions have bE.en made for collecting the remaining portion of the capital within a year, etc. It would seem that the purpose of the Section is to require that the Superintendent be satisfied that the necessary capital be on hand before the bank actually begins business. Obviously, it is necessary that the parent bank have obtained such a permit before a branch bank may be opened. Inasmuch as the capital structure of the parent bank is in effect the same as that of a branch bank, it would seem that an additional investigation of the capital structure of thf: branch bank would be superfluous and unnecessary. Therefore, it is my opinion that it is not mandatory that the Superintendent of Banks issue a permit to begin business to a branch bank separate and distinct from that issued the parent bank. However, I wish to point out that thE: Superintendent of Banks is empowered to "make such rules and regulations to carry out the provisions of the Banking Law he mny consider of value to the Department of Banking" (Code Section 13-318). Under this authority, it is my opinion that the Superintendent of Banks is clearly authorized to requirE: the issuance of a permit to begin business to a branch bank before such branch may begin business. The promulgation of such regulations is within the discretion of the Superintendent of Banks, and as above stated, it is my opinion that unless the Superintendent should require it, it is not necessary that a branch bank be issuE:d a permit before it may begin business. In preparing this opinion I have not considered or passed on the constitutionality or status of the Act of 1929 which authorizes branch banks in cities of over 200,000 population, but have accepted it as valid.
BANKS AND BANKING-Branch Banks The Act of 1919, as amended by the Act of 1927, providing for the continuation of existing branch banks but prohibiting the opening of others, is constitutional, and in force and effect as modified by Ac's of .July 20 and August 17, 1929, which are also constitutional and are in full force and effect.
July 22, 1948 Honorable 0. G. Jackson State Superintendent of Banks
I have your letter of July 9, in which you request my opinion as to ibe constitutionality, force and effect of the several laws rE:lating to the eo:tab1ishment of branch banks. As you have stated, I previously comidered these statutes and
rendered an opinion on them to the Honorable John C. Beaslty, your predecessor
in office, on March 12, 1947. At your request, I am most pleased to review my
previous opinion. 1. In 1927 the General Assembly amended the banking Act Of 1919, add-
ing the following provision: "Mter this Act takes effect, no new or additional branch banks shall be
established." (Georgia Laws 1927 p. 197, Georgia Cod& Annotated, Sec. 13-203). 2. On July 20, 1929, an Act of the General Assembly was approved which
stated in part as follows: "Banks operated under the laws of this State and having their principal
office in a city now or haeafter having a population of not less than 80,000 or more than 125,000 may establish branch banks ii:J. the city in which its principal office is located." (Georgia Laws 1929, p. 124).
3. On August :17, 1929, an additional Act of the General Assembly was approv&d which provides in part as follows:
"Banks operated under the laws of this State and having their principal office in a municipality now or hereafter having a population Of not less than 200,000 according to the last census of the United States or any future census of the United States, may establish branch banks in the municipality in which its principal office is located.'' (Ga. Laws 1929, p. 214).
Each of the 1929 Acts contain the usual gentral repealing clause.
The Act of 1919 (paragraph 1 above) did not make the operation of branch banks illegal; to the contrary, it permitted continuation of the oreration of those branch banks which were in existence at the time of the passage of the Act. The Act did, however, prohibit the futurE: establishment of new or additional branch banks. The Act of 1919 would seem to be a general law and, for the purpose of this discussion, I have so considered it. (Compare Thomas v. Austin. 103 Ga. 701, 705).
In Stewart v. Anderson, 140 Ga. p. 31, our Supreme Court states:
"A general law may be repealed or modified by another general law but it cannot be r&pealed or modified by special or local laws."
It is necessary to determine whether or not the two Acts of 1929 (paragraphs 2 and 3 above) are general or special laws. It has been held many timeSj by our appellate courts that laws which are applicable only to cities or counties of a given population are general laws if all cities or counties within such population classification are covered by the law, and if other cities or counties which are not within the population classification at the time of enadment of the law may later come within such a law by growth or shrinkage in population. See Nichols et al. v. Pirkle, 202 Ga. p. 373, at headnote 2 (a) in which the Supreme Court stated:
"... laws operating uniformly throughout the State with respect to the subject-matter, but applying only to cities or counties of a common class having a certain number of inhabitants or more, arti general statutes having uniform operation."
See also Sumter County v. AHen, 193 Ga. p. 171
And, Wlheat v. City of Bain>b,ridg.e, 168 Ga. p. 479, 481, wherein the Court stated:
"It is not necessary that every county in the State, at the time of the pass-
6
age of the law, should fall within its operation, but it is necessary that none should be excepted in such a way that it can never fall within its provisions."
Patently, each of the Acts of 1929 fully complies with the requiremE>nts of generality as enunciated by our SupremE:: Court in the above quoted cases.
A further test of the generality of a law which applies only to cities or counties of a given population is that there must be a reasonable relation between the subject of legislation and the population requirements set out in the law. See Cain (King) v. State, 166 Ga. p. 539, 542.
It seems to me obvious that such a reasonable relation is present in both of the Acts of 1929. Branch banks are cutainly needed more in the larger cities of our State than in the smaller ones and the laws which permit such branch banks in the larger cities while prohibiting them in smaller cities certainly would seem to be based on commercial convenience and necessity.
I must here point out that citiE::s falling in the population ib'racket between 125,000 and 200,000 are excluded by all of the several Ads. No reasonable basis for such exclusion occurs to me, but it is as well within the province. of the General Assembly to fail to provide such a privilege as the right to establish branch banks as it is to grant it. However, the mere failure of the Legislature to permit branch banks within this population bracket may not bE:: considered in passing on the generality of the two Acts of 1929. If these two Acts are general they are so because of their own terms, and the exclusion of other population brackets which might be the subject of general legislation themselves is no valid ground for determining the 1929 Acts to bE:: special.
If either of the Acts of 1929 were special or local laws they could not legally operate in such a manner as to vary the terms of the general law of 1927. Howevtr, since both the Acts of 1929 fulfill the requirements of generality as laid down by our Supreme Court, it is my opinion that both of them are general laws and not special laws, and therefore both of them may vary or modify the terms of the general law of 1927 (paragraph 1 above) which prohibited the establishment of branch banks.
The only remaining question to be determined is whether or not the two Acts of 1929 are in conflict and if so, which of them prevails. In Erwin v. Moore, 15 Ga. p. 361, the Supreme Court stated:
"WhE::re the provisions of two statutes are so far inconsistent with each other, that both cannot be enforced, the latter must prevail; but if, by any faitr' course of reasoning, the two can be reconciled, both shall stand."
In Sampson v. Brandon Grocery Comp.any, 127 Ga. p. 454, 456, the Supreme Court stated:
"It is a well-recognized canon of statutory construction that a subsequent statute will not repeal a former if the two can be reconciled."
See also Cook v. Wier, 185 Ga. p. 418, 421, which states:
"A statute must be construed with reference to the whole systE::m of which it forms a part.''
The autho'rities cited above, holding that statutE::s in pari materia are to be construed together and in such a manner as to avoid conflict if possible, clearly support the contention that the two Acts of 1929 do not conflict. It is my opinion that both may harmoniously stand together in full force and dfect entirely without conflict.
Therefore, since both of the Acts of 1929 are general laws and since they
7
do not conflict with one another, it is my opinion that all three of the Acts in qut::stion are constitutional and are in effect at present.
In summary, my opinion is as follows: a. Branch banks in existence prior to the enactment of the law of 1919 are legally in operation. b. Branch banks may be established in cities having a population of not less than 80,000 or more than 125,000. c. Branch banks may be established in municipalities having a population of not less than 200,000, according to the last United States ,census, which wal; the census of 1940.
BANKS AND BANKING-Branch Banks The Branch Bank Law providing for establishment of branches in municipalities in which the principal office is located does not relate to any portion of Fulton County outside of tht:: incorporated City of Atlanta.
August 25, 1948 Honorable 0. G. Jackson State Superintendent of Banks
I have your letter of August 17, in which you request my opinion upon the following question:
Is Fulton County such a municipality as to place it within the operation of the Branch Bank Law of 1929 (Georgia Laws 1929, p. 214) so that a bank having its principal office in the City of Atlanta may establJsh a branch in the unincorporated town of Buckhead, or in any other section of Fulton County?
The Act in question states in part as follows: "Banks chartered under the laws of this State, and having their principal office in a municipality now or hereafter having a population of not less than 200,000 ... may establish branch banks in the municipality in whkh its principal office is located." Your question turns entirely upon the definition of the word "municipality." In Penick v. F,o,ster, 129 Ga. 217, 219, the Supreme Court stated: "A municipality is also a mere political subdivision of the State. It is a public corporation having for its object the administration of a portion of the powers of government delegated to it for that purpose." The above definition was not enunciated by the Court for a purpose similar to that which we have here, but in my opinion it is ht::re applicable. Without burdening you with lengthy citations, it is my opinion that the above quoted definition is in accord with other definitions of the word made by courts in other jurisdictions. (See Words and Phrases, Volume 27, page 790, et seq. It is therefore my opinion that the Act of 1929 is applicable only to municipalities properly incorporated under the laws of Georgia and is not applicable to the unincorporated areas of Fulton County or any other county. Definitions are ethereal things, and ultimately every man must be his own lexicographer. I quite readily see the possibility of a difference of opinion over the dt::finition of the term, and for that reason I would welcome a court test should it arise. I trust that the above is the information you have sought, and if: I can be of any further service to you at, any time, do not hesitate to call on ~e.
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BANKS AND BANKING-Directors A director of a bank having a capital not exceeding $25,000 must own $500 of stock on which all due installments have been paid.
September 20, 1948 Hon<>rable 0. G. Jackson State Superintendent of Banks
I have your letter of September 7, in which you request my opinion, on the following situation:
A State bank, chartered in 1907 with a capital of $25,000.00 and which now operates under a renewed charter which states that the capital stock is $25,000.00 "with $15,000.00 paid in," recently had an election of members of the Board <>f Directors and five of the directors dected owned only five shares of stock each. The stated par value of the stock is $100.00 per share, but1 only $60.00 per share has been paid in. Thus each share represents $60.00 of paid in capital and the total paid in capital amounts to $15,000.00."
Georgia Code Annotated, Section 13-2002 is as follows: "Every director must, during his whole term of service, be a citizen of this State or reside within 25 miles of the city or town in which the bank is located, and at least three-fourths of the directors must be residents of the city or town in which the bank is located or within 25 miles thereof, and must continue so to reside during their continuance in office. Every director must own in h's own right and unpledged capital stock having a par value of at least $1000 of i:ihe bank of which he is a director, upon which all installments which are due sha,l~ have been paid in full, unless the capital of the bank shall not exc~ed $25,000, in which case he must own such stock having a par value of at least $500. Any director who ceases to be the owner of the number of shares herein required, or who pledges the same, or who fails to pay any installment thereon when the same becomes due, or who becomes in any other manner disqualified, shall vacate his place as a member of the board: Provided, that this section shall not apply to directors in office on January 1, 1920, and said directors shall 'be qualified to succeed themselves as often as they may be reelected, without reference to the provisions of this section.'' You will note from the above that every director of a bank whose capital exceeds $25,000 must own stock of that bank having a par value of at l:ast $1000 "upon W1nich all installments whicft are due. shall have been pe,id in full," and that any director of a bank whose capital does not exceed $25,00ct "must own suc!h stock having a par value of at least $500.'' The only question presented is whether or not the stock owned by directors in smaller banks must be "paid in full" as is required in banks having a capital of over $25,000. That is, whether the descriptive clause which begins "upon which all installments, etc.'' modifies the word "stock" as used in the clause set-
ting out the requirements for stock ownership in the smaller banks. Itl will be
noted that directors in the small banks are r:quired! to own "such stock.''' It is my opinion that the words "such stock" refer directly to the descriptive
clause which requires director-owned stock to be paid in full, and therefore, directors in banks having a capital of less than $25,000 must own stock having a par valu~ of at least $500 upon which all installments which are du.e shall have been paid in full.
Under this construction of the statute in question, if the directors of the
bank in question have not paid in full all installments which are due on stock having a par value of at least $500 they 'are disqualified and may not hold office as directors. Your letter does not state whether or not there are any overdue installmr,nts on the stock owned by the directors.
This opinion is not based upon the construction of the words "par value" inasmuch as those words, as they have been construed by the courts, are ~x tremely ambiguous. See 31 Words and Phrases, 1948 Pocket Part p. 10, and Itarticularly: Wlhelan v. CoiM'oy, 10 A. 2d, 636, 126 N. J. Eq. 607.
BANKS AND BANKING-Exchange (Unofficial) A State bank may charge for exchange not more than % of 1 P'ercent of the~ aggregate amount of checks.
May 7, 1948 Mrs. J. B. Geiger
I have your letter of May 1, in which you request my opinion ~as to ho~w much exchange a bank may legally charge.
As you know, I am prohibited by law from rendering official opinions to anyone except the Governor and heads of the various State departments, therefore, the following remarks are entir:ly personal, unofficial, and not binding on anyone.
I call your attention to the following words in Code Section 13-2027, which I have had excerpted and attach hereto:
" . . . a bank shall have the right to pay cheeks drawn upon it when pll'esented by any bank, bank:r, trust company, or any agent thereof, either in money or in exchange, drawn on its approved reserve agents, and to charge for such exchange not exceeding one-eighth of one (1) per cent of the aggregate amount of the checks so presented and paid."
CODE SECTION 13-2027
"Every bank whose deposits are subJect to check shall at all times maintain a reserve of fifteen (15) per'cent of the amount of its demand deposits, and five (5) per cent of the amount of its savings and time deposits. Savings banks and trust companies whose deposits are not subject to check without notice shall maintain a reserve of five (5) per cent of the amount of their deposits. Such reserve shall consist of lawful money of the United States, gold certificates, silver certificates, Federal Reserve or National Bank notes, in the office and vaults of the bank, and of moneys on deposit subject to call with other banks or bankers, such banks or bankers to be approved by the Superintendent of Banks: provided that the reserve against savings and time deposits may be invested in bonds of the United States or of this State at the market value thereof: provided that any bank which is a member of the Federal Reserve System may in lieu of the reserve herein required keep and maintain such reserve as is required under the Acts of Congress relating to Federal Reserve Banks. Demand deposits within the meaning of this section shall comprise all deposits payable within thirty days, and t:me deposits shall comprise all deposits payable after thirty days and all savings accounts and certificates of deposit which are subject to not less than thirty days notice before payment, and provided that a bank shall have the right to pay checks drawn upon it when presented by any bank, banker, trust c',ompany, or
10
any agent thereof, either in money or in exchange, drawn on its approved reservE: agents, and to charge for such exchange not exceeding one-eighth of one (1) per cent of thE> aggregate amount of the checks so presented and paid.
"So-called private banks or private bankers, doing a banking business in the State of Georgia, and not within the definition of a 'bank', as defined in the banking laws of Georgia, shall have the right to pay checks drawn upon it or them when presE>nted by any bank, banker, trust company, or any agent thereof, either in money or in exchange drawn on its approved reserve agents, and to charge for such cash payment or exchange check, an exchange charge of not exceeding one-eighth of one per cent of the aggregate amount of the check or chE>cks so presented and paid. The phrase 'approved reserve agent' as used in this paragraph, shall apply to and be understood to mean such banks as operate under the Georgia State banking law as approved by the State Superintendent of Banks, and/or national banks operating under the supervision of the Comptroller of the Currency.''
BANKS AND BANKING-Exchange 1. Where checks from one State bank are presented to another local bank for cash over the counter, the exchange fee may not be charged. 2. The local collecting bank has no right to any part of the usual exchange fee.
FE>bruary 20, 1948 Honorable 0. G. Jackson State Superintendent of Banks
I have your letter of February 18th in which you request my opinion on several questions arising from the following situation:
In a community where there are several State chartered banks and from time to time checks from one of the banks arE> presented to other of the 'local banks for settlement over the counter -
1. May the local paying bank, in making settlement over the counter in ~ash, deduct from the face value of the check the usual exchange fee of) % of one pE>r cent, or any part of it?
2. May the paying bank aggregate the amounts of such checks, and deduct from such aggregate amount % of one per cent thereof, and settle by exchange drawn on approved reserve agent, or bank?
3. If questions 1 and 2, or tither, be answered in the affirmative, and the local collecting bank refuses to accept such settlement; and returns such checks as unpaid on demand, what (a) recourse has the local paying bank, and (b) what liability does the local collecting or clearing bank incur, either to the local paying bank, or otherwise?
4. Does the local collecting bank have any right to the usual exchange fee, or any part of it?
As to question 1 : It is necessary to consider the provisions of Code Section 13-2027, as to the last paragraph, which states:
" . . . . a bank shall have the right to pay checks drawn upon it whE:n presented by any bank, banker, trust company, or any agent thereof, either in money or in exchange drawn on its approved reserve agents, and to charge for such exchange not exceeding one-eighth of one per cent of the aggregate amount
11
<lf the checks so prE:sented and paid.'' The paragraph patently gives a paying bank the right to elect to pay a
eheck either in money or in exchange, but the right to charge for such payment seems to be confined to payment made in exchange. The section provides that a bank shall have the right to pay chE:cks drawn upon it when presented by any bank, etc., "either in money or exchange ... and to charge for such exchange".
It will be noted that the phrase authorizing the election in method of payment is "in money or exchange", but the phrase authorizing the charge for payment does not contain refE>rence to payment in money but merely gives the right "to charge for such exchange". Had the phrase authorizing charge for payment been "and to charge for such payment in money or exchange", the answer to the first question would clearly be in. the affirmative. Since, however, the word m:onE:y is omitted from the phrase authorizing the charge, it is my opinion that the rule of statutory construction which states "where a form of conduct .... and the things to which it refers are affirmatively or negatively designated, there is an inference that all omissions were intended by the Legislature".
Sutherland on Statutory Construction Vol. 2, page 412. Under this rule omission of the word "money'' from the phrase authorizing a charge for payment must be deemed to have been intentional, so that no charge is authorized for payment of checks in cash. Therefore, it is my opinion that a paying bank in ffi/aking settlement over the counter in cash may not deduct an exchange fee of 1;\; of one percent of the amount. I shall consider question 2 and 3 together, inasmuch as the state of the law is such as to obviate at direct conclusion on the question. As stated above it is clear that Code Section 13-2027 gives a paying bank an election to pay either in money or exchange. Yet both the Court of Appeals and the SupremE: Court >:l'l Georgia have held that when a collecting bank presents a check to a paying bank, if it accepts exchange rathE:r than money in payment, without the consent of the custo"'mer who originally presented the check to the collecting bank, the collecting bank accepts the exchange at its own risk and if the exchange is not later paid, the collecting bank must bear the loss. (Peoples Bank vs. Foster, 180 Ga. p. 1, and Foster vs. Peoples Bank, 47 Ga. App. p. 447). It is obvious that the effect of the decisions is t~ negative the efficacy of the Code Section, in so far as practical banking procedure is concerned, for if a paying bank may pay in exchange and the collecting bank mus~ acceplt such exchange at its own risk, a somewhat heavy burden is imposE:d upon the collecting bank. As to whether or not the paying bank may force the collec)ting tbank jW accept exchange and thereby accept the risk, I offer no opinion. For me to do so would be to decide a conflict bE:tween the decisions of our courts and om. statutes. This would clearly be an usurpation of the authority of the courts and it is not within the provinc.e of my office to take such action. As to question 4: After consideration of the Code Section in question, and the banking laws generally, I find no authority to support the collecting bank in charging exchange fees on transactions such as are hereby described.
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BANKS AND BANKING-Small Loan Companies (Unofficial) Prosecution of small loan companies operating without license is within the province of the County Solicitor General's Office.
May 7, 1948 Honorable E. J. Clower Solicitor General
The Honorable 0. G. Jackson, Superintendent of Banks, has conferred with me concerning your letter to him of May 4, in which you request his1 office! to investigate certain small loan companies doing busin6ss in your county. He has asked that I apprise you of the advice and recommendations which I have made to him concerning your request.
Mr. Jackson states that no small loan company in Floyd County has rbeen issued a license to do business under the provisions of Code S6ction 25-301. ;Ii;i small loan companies in Floyd County are making loans within the provisions of the Code Section they are doing so without the required license, and they are ther6fore guilty of misdemeanors under Code Section 25-9902.
This being criminal activity, it is my view that the proper office for investigating and prosecuting the guilty party is that of the S:olicitot, General of the County in which such activities are carried on. You will readily understand that criminal investigation is not within the province of the Department of Banking, nor has such department the facilities to carry on such criminal investigation in . all of thE:' counties in Georgia. Therefore, I have recommended to Mr. Jackson that he cooperate with you in every way in establishing the fact that no licenses have been issued to the companies in question, and in every other way which the facilities of his office permit.
The inv6'Stigations which the Superintendent of Banks may carry on under the provisions of Code Section 25-310 are "for the purpose of discovecring violations of" the Chapter, and it is my review that the only action the Superintendent may take when such violations are discovered is to notify the Solicitor General of the county in which the violations take place, and thereafter to cooperate with the Solicitor General in every way, both in the ensuing criminal investigation and in the trial of the offenders. When violations are discovered by thE:' Solicitor General himself, the Superintendent of Banks need only furnish such evidence as he may havE:' to the Solicitor General and otherwise cooperate in the prosecution of the case.
I wish to make it clear that Mr. Jackson is anxious to cooperate in every way possible and that he is vitally inter6sted in halting illegal operations of small loan companies wherever they may be. To this en<L he is most willi~ to furnish whatever assistance the facilities of his office make availablE;, but his department is not provided with the personnel or equipment necessary to gather criminal evidence for prosecutions in the courts, nor, as I have pointed out, does the small loan law contemplate that he should have such facilities or carry on such activities.
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BANKS AND BANKING-Superintendent Whether a bank chartered by the Superior court comes within the class of banks subject to examination by the Superintendent of B'anks is entirely within his judgment.
January 28, 1948 Hon. 0. G. Jackson Superintendent of Banks
I have your letter of January 26th in which you request my opinion as to whether or not certain corporations are subject to examination by the Superintendcmt of Banks. The Corporations are: Chatham Savings & Loan Company, Industrial Savings & Loan Company, The Morris Plan Company of Savannah, Southern Savings & Loan Company. All of them were created by Superior Court charters.
The Superintendent of Banks is authorized to examine only banks subject to his jurisdiction. (Code Section 14-401).
Ga. Code Section 13-201 defines the term "bank" as follows: "The term 'bank' as used in this Title means any moneyed corporation authorized by law to receive deposits of money and commercial paper, to make loans, to discount bills, notes and other commercial paper, to buy and sell bills of exchange, and to issue bills, notes, acceptances or other evidences of debt, and shall include incorporated banks, savings banks, banking companies, trust companies and other corporations doing a banking business, but unless the context otherwise indicates, shall not include private bankers, partnerships or voluntary associations doing a banking business, or nationai banking associations, or building and loan associations or similar associations or corporations: ...." You will note that "building and loan associations or similar associations or corporations" are not banks as defined by the above quoted section. You state that the corporations in question do not do a general banking business, and that they were chartered by Superior Courts, which court cannot create a bank. Therefore, the question is raised as to whether or not these corporations are "similar'" to building and loan associations. The Court of Appeals of Georgia has held that this question is one to be determined by the judgment of the Superintendent of Banks exdusively. In the cas:' of Gormley v. State, 54 Ga. App. 843, at page 848, where a suit was brought against the then Superintendent of Banks, seeking damages resulting from the Superintendent's failure to examine a Superior Court chartered corporation, which was engaging in some banking activity, the court said: "That it is a ministerial duty (of the Superintendent of Banks) to visit and examine every bank subject to his supervision, at least twice in each year, there can be no doubt. But in some instances it must necessarily have been left to the judgment of the superintendent of banks as to what banks were subject to his supervision." The court said further: "It may be readily seen that under the powers conferred by its charter the Bankers Savings and Loan Company may well be classed as a like association, to a building and loan association, as defined in the Gode, Sec. 16-101, quoted above. Therefore whether the superintendent of banks had supervisory powers over such a corporation where it undertook to do a general banking business, and, if so, whether because of the facts alleged the Bankers Savings and Loan
14
Company was doing a general banking business, and what acts amount to the carrying on of a general banking business were undoubtedly questions requiring the exercise of judgm.ent on the pa.rt of the superintendent." (Emphasis supplied).
If it be determined that the organizations in question are in fact similar to building and loan associations they will not be banks within the meaning of the statute, and therefore, they will not bEi subject to examination.
The certain statutes and cases may serve as guides to the proper determination of the question, and I cite them for your convenience:
Code Section 16-101, Code Section 16'-201 and Mcintosh v. Thomasville Real Estate Improvement Company, 138 Ga. 128.
To repeat, it is my opinion that the determination of whether or not the corporations in question are subject to examination is entirely within your Judgment, and it is not mandatory upon you to examine them.
BANKS AND BANKING-Superintendent The Superintendent of Banks may create a Banking Board to serve in an advisory capacity in his rule-making and regulatory duties.
June 1, 1948 HonorablE~ 0. G. Jackson State Superintendent of Banks
I have your letter of May 25, in which you request my opinion on the following question:
Does the Superintendent of Banks have the authority under Georgia Code Section 13-318 to create a Banking Board to serve in an advisory capacity to the Superintendent who will act as ex officio member of such Board, or. is legis lation required to authorize the creation of such a Board?
The pertinent part of the Section is as follows: "The Superintendent of Banks shall make such rules and regulations to carry out the provisions of this Act (the banking law) as he may consider of value to the Department of Banking." It is my opinion that the intention of the Legislature in enacting this Section was to authorize the Superintendent of Banks to implement the banking law with binding regulations and rules covering situations where he deems administrative interpretation and construction of the law necessary or advisable. This rule-making authority is similar to that of the Commissioner of Internal Revenue, the Insurance Commissioner, etc. If the purpose of the proposed Banking Board is to assist and advise the Superintendent in his rule-making and regulatory duties, I am quite definitely of the opinion that the Superintendent is authorized to create such a Board. However, I do not believe that such a Board would be authorized to do more than advise, and then only on the rule-making and regulatory matters mentioned above. If the intended scope of the duties of the Banking Board is to be broader than as above stated, it is my opinion that legislative authority would be required to creatE~ the Board.
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BANKS AND BANKING-Superintendent 1. The Superintendent of Banks may, but it is not his duty to, investigate unlicensed persons engaging in the small loans business. 2. The investigation and prosecution of such crimes is within the province of the County Solicitor General.
July 8, 1948
Honorable M. E. Thompson, Governor I have your letter of June 24, in which you state that the Hondrable Eo J.
Clower, Solicitor General of the Rome Judicial Circuit, has asked you to request my official opinion upon the following question:
Is it the duty of the Superintendent of Banks to investigate and make cases against perg,ons who are engaging in the business of making small loans without having been properly licensed?
Code Section 25-310 is as follows: "The Superintendent of Banks, for the purpose of discovering violations of this Chapter, may either personally or by any person designated by him, at: any time, and as often as he may desire, investigate the loans and business of every licensee and of every person, partnership and corporation by whom or which any such loan shall be made whether such person, partnership or corporation shall act, or claim to act, as principal, agent or broker or under or without the authority of this Chapter, and for that purpose he shall have free access to the office or place of business, books, papers, records, safes, and vaults of all such persons, partnerships and corporations; he shall also have authority to examine under oath all persons whomsoever whose testimony he may require, relative to such loans or business." The above quoted Section empowers the Superintendent to investigate the loans and business of any person violating the provisions of Title 25, Chapter 3 of the Georgia Gode. This grant of authority is contained in the words "The Superintendent of Banks ... may ... investigatt" etc. It is my opinion that it was the intention of the legislature to place the exercisE:: of this authority within the discretion of the Superintendent. It is clearly not mandatory upon the Superintendent to make such investigation, since the statute states that the Superintendtnt "may ... investigate." The investigations which the Superintendent of Banks may carry on under the provisions of Code Section 25-310 are "for the purpose of discovering violations of" the Chapter, and it is my view that the only action the Superintendent may take when such violations are discovertd is to notify the Solicitor General of the county in which the violations take place, and thereafter to cooperate with the Solicitor General in every way, both in the ensuing criminal investigation and in the trial of the offenders. When violations are discovered by the Solicitor General himself, the Superintendent of Banks need only furnish such evidence as he may have to the Solicitor General and otherwise cooperate in the prosecution of the case. The operation of illegal loan businesses is criminal activity and it is my view that the proper office for investigating and prosecuting guilty parties is that of the Solicitor General of the county in which such activities are carried , on. You will readily understand that criminal investigation is not within the : proyince of the Department of Banking, nor has that Department the facili: ies to carry on such criminal investigations in all the counties of Georgia.
16
At the request of the SuperintendE:nt of Banks, I have previously apprised Mr. Clower of my opinion both as to the proper interpretation of the statute in question and as to my recommendation to the Superintendent on the course of action he should take to implement its terms. I am most pleased, however, to restate my opinion in official form for your benefit and the benefit of Mr. Clower.
I wish to state that the Superintendent of Banks is and has always been most anxious to combat the operation of illegal loan businesses in this State, and he has taxed himself and his entire department to the utmost in this effort. Further, both the Superintendent and the entire Department of Banking have in the past and are now cooperating to the fullest extent with the several solicitors general and othE:r enforcement officers of this State in the discovery and prosecution of violators of the small loans law. I am sure that Mr. Clower is aware of this and that he would be among the first to praise the fine spirit of cooperation which the Department of Banking is evidencing.
BANKS AND BANKING-Superintendent In the event of vacancy in the office of the Superintendent of Bank~, the Assistant Superintendent shall act, or if there be none, the Governor shall appoint a SuperintendE:nt who shall appoint an Assistant.
MEMORANDUM
TO:
Hon. Herman Talmadge, Governor
FROM:
Eugene Cook, Attorney General
SUBJECT: APPOINTMENT OF SUPERINTENDENT OF BANKS
You are authorized to appoint Superintendent of Banks, and he in turn
appoints Assistant, since the Banking Department is without eithtr, under the
following authority:
Section 13-303 of the Code provides:
"Vacancy in office of Superintendent, how filled. In the event there shall
be a vacancy in the office when the Senate is not in session, caused by death,
resignation, disability, suspension or removal of the Superintendent of Banks,
the assistant superintendent shall act, holding the office until the Senate con-
venes and a successor to the Superintendent of Banks is appointed and qualified.
"When the assistant superintendent shall hold the office of Superintendent, as
herE:in provided, he shall receive the same salary, and give the same bond aS!
herein provided for the Superintendent of Banks.''
If there is no assistant superintendent of banks, then it would be necessary
for the Governor to appoint a Superintendent of Banks. The1 Constitution itself requires that such an appointment be made. Section 2-3013 of the Constitution
provides:
"When any office shall become vacant, by death, resignation, or otherwise,
the Governor shall have power to fill such vacancy, unless otherwise provided
by law; and persons so appointed shall continue in office until ~ successor is
commissioned, agreeably to the mode pointed out by this Constitution, or by law
in pursuance thereof."
After the Superintendent of Banks has been appointed, he in turn can
appoint an assistant as provided for in Section 13-310. This Section provides in
part as follows:
17
"The Superintendent of Banks shall appoint from time' to time, with the right to discharge at will, an assistant superintendent who shall be ex officio an examiner, and such additional examiners and office assistants as he may need to discharge in a proper manner the duties imposed upon him by law, provided that such appointments shall not extend beyond the term of office of the Superin~ tendent of Banks making such appointments.... "
CONSTITUTION OF THE STATE-Amendments 1. Every Constitutional amendment must be published in each Congressional District. 2. If the amendment directly affects less than all political subdivisions it must be published in the county or counties affected, and may also be published again in the same Congressional District. 3. A number of amendments of general effect may be divided among the newspapers of the particular Congressional District. 4. A number of amendments of local effect being published a second time under the permission in "2" above may be divided among the newspapers of the particular Congressional District.
September 17, 1948
Honorable M. E. Thompson, Governor I am pleased to acknowledge your letter of September 14th, in which you
request my official opinion in reference to the publication of certain proposed constitutional amendments. In your letter you state the following:
"In placing the publication of these amendments with the various newspapers of the State, I followed the provision with reference, to advertising that was carried in the amendments themselves, which reads as follows:
" 'The Governor shall be and he is hereby authorized and instructed to cause such amendment to be published in one or more newspapers in each congressional district of this State and also in the newspaper wherein the sheriffs' advertisem*nts are published.' . . .
"'In discussing this matter with the State Auditor, he informs me that in order for the accounts to be paid that it will be necessary for him to have ;an opinion of the Attorney General clarifying those points of law with reference to the publication of the constitutional amendments.' "
You have under consideration seventeen proposed constitutional amendments for publication to be voted on by the electorate in the November general election, none of which directly affects every political subdivision in the state.
Your specific inquiry raises the question of how many newspapers in each congressional district, you as Governor, would be authorized to employ in publishing the proposed constitutional amendments. In order to answer this question, it will be necessary to examine the Constitution and statutory laws on this subject, together with certain decisions of our appellate courts which throw much light upon a proper interpretation of these provisions of law.
The pertinent portion of Paragraph I, Section I, of Article 13 of the State Constitution which applies to your inquiry, is as follows:
"... The General Assembly shall cause such amendment or amendments to be published in one or more newspapers in each congressional district, for two months previous to the time of holding the next general election at which eilec-
18
tion members of the General Assembly are chosen; and if such proposed amendment directly affects only one or more political subdivisions of the Stalte, then it shall also be advertised in the area to be directly affected thereby; ...''
The Constitution of 1945 differs from the formfor Cons:titution by adding the words, "and if such proposed amendment diredly affects only one or more political subdivisions of the State, then it shall also be advertised in the. area to be direc~ly affected the,reby." There are other changes in reference to this Paragraph of the Constitution which nfoed not be referred to in connection with this opinion.
In 1939 the General Assembly passed an Act which was later amended in 1941 (Ga. L. 1941, p. 384) which provides as follows:
"Whenever the General Assembly shall propose any amendment or amendments to the Constitution of this Statfo, as authorized by Article 13, Sedion ~. Paragraph I, of the. Constitution, and the same shall have been agreed to by two-thirds of the members elected to each of the two Houses and the 'ayes' and 'nays' thereon shall have been entered upon their respective Journals, it shall be the duty of the Governor to cause a complete transcript of each and every amendment to be published in only one newspaper (to be chosen by the Governor) in each congressional district, for two months previous to the time of holding the next general election. The Governor may, in his discretion, if more than one such proposal is to be submitted to the people, publish all of said proposed amendments in one newspaper in each such distric't, or may divide such amendments between various newspapers in such congressional district." (Emphasis ours).
The first question presented is whether the above statute of 1941 which is codified in the Supplement to the Code as Section 34-3501, conflicts with the provision of the 1945 Constitution previously referred to in this opinion. Where the Constitution provides that such amendmfonts shall be "published in one or more newspapers in each congressional district" the General Assembly is clothed with legis1ative discretion in the premises, with the limitation that this body must cause such amendments to be published at least in one newspaper in each congressional district. The Legislature would clearly be without authority to inter~ fere with this minimum requirement of the Constitution.
The only other restriction placed upon the authority of the Legislature in exercising its discretion as to the number of newspapers in each congressiona\ district in which it shall publish amendments, is tht provision added to this Paragraph in the 1945 Constitution, which reads as follows:
"And if such proposed amendment directly affects only one or more political subdivisions of the State, then it shall also be advertised in the are'a to be directly affected therfoby;" (Underscoring ours).
The above condition was imposed upon the Legislature when the new Constitution was adopted in 1945.
ThE:' second question presented, is, whether the above quoted provision added to the Constitution of 1945 conflicts with the statute of 1939 as amended in 1941. (Section 34-3501). The statutory provision makes no reference at all to the publication of proposed amendments in the political subdivisions of the State which may be directly affected thtreby. We must come to the conclusion that the statute of 1939 as amended in 1941 (Section 34-35~1') muJ;t give way to the constitutional provision of 1945 which requires that "if such proposed amendment directly affects only one or more political subdivisions of the State,
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then it shall also be advertised in the area to be directly affected thereby.'' (Emphasis ours).
The Constitution is broader than the statute on this subject. The statute limits the publication to "only one newspaper in each congressional district," but the Constitution says that such amendments must be published in "one or more newspapers in each congressional district," and, in addition, if such proposed amendements directly affect a particular subdivision of the State, they must also be advertised in the area to be directly affected. This simply meJlns, in my opinion, that if a proposed amendment affects only one county in f"he State, it must be advertised in a newspaper in the county to be affected. Then, it could "also" be advertised in another newspaper in the same congressional district of which this particular county is a part. In other words, the advertisem*nt could be published in one newspaper in the congressional district, and if the amendment was to affect directly one county in that district, it must necessarily be also advertised in that particular county.
It is no answer to this position to state that every constitutional amendment affects every county of the State, even though the particular amendment relates directly to only one county of the State. The Constitution makes it absolutely clear that in <>rder to advertise an amendment in a given county in addition to the advertisem*nt in the congressional district, such proposed amendment must directly affect that particular county or political subdivision of the :State. While in a broad sense it might be argued that the question of whether I<'ulton County has a constitutional amendment permitting this county to collect garbage does affect every other county in the State, nevertheless such a broad use of the term "affected thereby" is given a restricted meaning in the Constitution by the addition of the word "directly'' so that the character of the effect prescribed by the Constitution is a direct effect. Surely, F'ulton County is the only county in this State directly affected by this particular amendment. It is this restricted sense in which these words should be employed.
In those congressional districts where the proposed amendment or amendments affect directly more than one county in that district, the publication must be made in each of the counties directly affected, and the Governor, in his discretion, might cause the amendment or amendments to be published in one other newspaper in that congressional district. In no event however, would it be necessary or proper to publish these proposed amendments in more than one newspaper in a congressional district where none of the counties of that district were directly affected by the proposed amendment or amendments, provided that if more than one amendment is to be submitted and no political subdivision is directly affected thereby the Governor may in his discretion divide such amendments between various newspapers in such congressional district.
The last sentence in Section 34-3501 provides as follows: "The Governor may, in his discretion, if more than one such proposal is to be submitted to the people, publish all of said proposed amendments in o,ne newspaper in each such district or may divide such amendments between various n.ewspapers in such congressi.onal district." (Emphasis supplied). In view of the above statute, you are authorized to exercise your discretion in the division of such advertisem*nts. The amendments may be divided between various newspapers in each congressional district according to your discretion in the matter. The only exception to the exercise of your discretion is that in those counties directly affected by the proposal, such amendment or amendments
20
must be run directly in this county. In all other instances, the above statutory provision would apply.
Since I am holding that Section 34-3501, the statute under consideration, must give way to the provision of the 1945 Constitution which states that auch amendment "shall also be advertised in the area to be directly affected thereby", the question naturally arises as to whether this inconsistency bE:tween the statute and the Constitution will invalidate the entire statute. The general rule of statutory construction is that where a part of an Act is invalid, if after the objecttion~ able part is omitted, there still remains enough to effectuate the legislative intent that the rest of the Act will be given effect. See, Bennett, Supt., vs. W,beatley, Administratrix, 154 Ga. p. 591. In Felton vs. Bennett, 163 Ga. p. 849, the Court held:
"1. All doubts upon the subject of unconstitutionality are to be resolved in favor of constitutionality, in order, if it be legally possible, to give! effect to the manifest legislative intent. (2) If it be found that the enactment is in some rE:spects invalid and such portions must be avoided, the court will nevertheless preserve all portions of the legislation which are valid and enforceable."
In keeping with the above principle of law, I am of the opinion that the provision of the statute (Section 34-3501) which limits the publication to only one newspaper in each congressional district is valid, except in those instances where the proposed amendment directly affects one or more political subdivisions of the State. In these latter instances, the addE:d provision of the C(onstitution of 1945 takes precedence over the statute, and the amendment or amendments must be advertised in those countiE:s which are directly affected by such proposed constitutional amendments. With this exception, I am of the opinion that the statutory provision above referred to is valid and binding upon you, as Governor.
You call my attention to the fact that some of the proposed amendments to the Constitution provide that "the Governor shall be and he is hereby authorized and instructed to cause such amendment to be published in one O'r more newspapers in each congressional district of this State, and also in the tlewspaper wherein the sheriffs' advertisem*nts are published."
The above stated provision is not tantamount to a statute, and neither does it have the effect of overruling or repealing in any wa'}. Section 34-3501 previously refured to. In Cartledge vs. City Counlcil of Augusta, 189 Ga. p. 269, the Supreme Court of Georgia held as follows:
"In acting on a proposal to amend the Constitution, the General Assembly is not legislating at all, nor can they by legislation add to, take from, or a\Lter' the mode of its submission to the people."
To the same effect, see Cooney vs. Foote, 142 Ga. p. 647 ,, where the Court, in speaking of a proposed constitutional amendent, stated:
"The proposal itself is not an act of the General Assembly, although it be proposed in the form of an act.''
From the above decisions, along with others which could be cited, it is clear that the proposed amendments under consideration do not have the force and effect of legislative enactments. Constitutional amendments which are being proposed to the electorate are voted on by the General Assembly in altogether a different manner than is the case in relation to statutes and resolutions. It is not necessary that a proposed amendment to the Constitution be read three times as is the case in legislative matters. Neither is it necessary to have the
21
approval of the Governor on such measures. I am therefore of the very definite opinion that the language contain:d in the proposals themselves cannot be used to change or vary the existing law in reference to the publication of proposed constitutional amendments.
I also call your attention to Section 5 of the Act of 1'939, which is codified as Section 34-3505 of the Pocket Part Supplement to the Code. This provision reads as follows:
"In hereaft:r proposing amendment to the Constitution, it shall not be necessary for the General Assembly in the resolution or act proposing the same, to provide for the publication and submission of any such amendment, but the same shall be published and submitted to the voters as provided by this Chapter; and any language in any such act or resolution thereafter passed, providing for such submission small be deemed surplusage and in every case such amendment shall be:~ published and submitted to the voters as provided by this Chapter."
The above statute clearly shows the intent of the Legislature to have this act apply as to future proposals, insofar as it may be legal to do so. For the purposes of this opinion, it is unnecessary to deal further with Section 34-3505 since my only purpose in citing it is to illustrate the legislative intent on the subject.
In summary, my opinion is as follows: 1. Under the old Constitution the Legislature was authorized to publish constitutional amendments in one or more newspapers in each congressional district. 2. This authority was delegated to the Governor by the Act of 1939 as amended, with the limitation that such proposed amendments could be published in "only one new.spaper" in each congressional district. 3. This legislative limitation was partially removed by thE: Constitution of 1945, so as to require publication of proposed amendments in any county directly affected by such proposal. 4. Where a proposed amendment does not directly affect a county in the congressional district, it shall be advertised in only one newspaper in th: congressional district, provided that amendments may be divided among newspapers at the discretion of the Governor, subject to the r:quirement that those directly affecting any political subdivision must be published in the area-city or county -so affected. 5. The provision in ten of the sevent:en proposed amendments authorizing publication "in one or more newspapers in each congressional district" is void and of no effect where it conflicts with the constitutional provisions and the Act of 1939 as amended. Under this provision the requirement in thE: ten proposed amendments for publication of the amendments in a newspaper in which the Sheriffs' advertisem*nts are published is surplusage. Selection of a newspaper within a given area is within the discr:tion of the Governor. 6. "The proposals must be published for two months previous to the time for holding the next general election at which members of the GenE:ral Assembly are elected". (Art. 13, Sec. I, P. I, Ga. Code Annotated, Section 2-8101). As stated, you have under considtration seventeen proposed amendments, no one of which affects all of the political subdivisions of the state. The Fifth Congressional District is composed of three counties, to wit: Fulton, DeKalb and Rockdale. (a) Supposing that of the seventeen proposed amendments five directly affect Fulton, four DeKalb and none Rockdale, it would be mandatory on you to
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publish in Fulton County the five affecting it and the four affecting DeKalb County in DeKalb County, and the remaining eight amendments must be published once each, as required by law, and the same may be divided among newspapers in the three counties as you may designate. In addition to this you may publish those amendments directly affecting Fulton and DeKalb Counties once more in the congressional district, giving all to one newspaper or dividing them as you see fit.
(b) Supposing no one of the seventeen proposed amendments diredly affects any political subdivision within a given district, you would be authorized to publish all seventeen of the proposed amendments in only one newspaper within the district or to divide them among as many newspapers in the district as you may designate in your discretion.
(c) If any one or more of the proposals should din,ctly affect every county in Georgia, you would be authorized to publish them in one newspaper in each county.
It is my opinion that any publication of the proposed constitutional amendments in exccess of that authorized by the foregoing conclusions of law and the applied formula would be illegal and unauthorized.
CONSTITUTION OF THE STATE-Local Legislation Sets out requirements for local legislation.
September 8, 1948
MEMORANDUM
To:
ME>MBERS OF THE GENERAL ASSEMBLY
From: EUGENE COOK, ATTORNEY GENERAL
Subject: REQUIREMENTS FOR LOCAL LEGISLATION
Article III, Section VII, Paragraph 15 of the new Constitution (ratified
August 7, 1945) which is codified as Section 2-1915 of the Code of Georgia of
1933, annotated pocket part, provides:
"No local or special bill shall be passed unless notice of the intention to
apply therefor shall have been published in the newspaper in which the Sheriff's
advertisem*nts for the locality affected are published, once a week for three
weeks during a period of sixty days immediately preceding its introduction into
the General Assembly. No local or special bill shall become law unless there is
attached to and made a part of said bill a copy of said notice certified by the
publisher, or accompanied by an affidavit of the author, to the effect that said
notice has been published as provided by law. No office to which a person has
been elected shall be abolished, nor the term of the office shortened or length-
ened by local or special bill during the term for which such person was elected
unless the same be approved by the people of the jurisdiction affected in a
referendum on the question. Where any local law shall add any member or mem-
bers to any municipal or county governing authority, the members of which are
elected by the people, such local law must provide that the member or members
so added must be elected by a majority vote of the qualified voters of the politi-
cal subdivision affected."
Under the foregoing Constitutional provision it will be necessary, before
any local bill is introduced either in the House or Senate, that the following steps be taken:
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1. That any local bill shall be advertised in the newspaper in which the Sheriff's advertisem*nts for the locality affected are published.
2. That any local bill shall be so published once a week for three weeks during a period of sixty days immediately preceding its introduction into the General Assembly.
3. Each local or special bill shall have attached to it, and made a part thereof, a copy of the notice which has been certified to by the publisher or accompanied by an affidavit of the author, to the effect that said notice had been published.
The following Constitutional provisions are also made: a. No office to which a person has been elected shall be abolished, nor the term shortened or lengthened by local or special bill during the term for which such person was elected, unless the same be voted on and approved by the people of the jurisdiction affected. b. Where any local law shall add any member or members to any municipal or county governing authority, the members of which are elected by the people, such local law must provide that the member or members so added must be elected by a majority vote of the qualified voters of the political sub-division affected. Under Chapter 69-1 (Sections 69-101 and 69-102) of the Code of Georgia, annotated, provision is made that no local law seeking to repeal or amend (which amendment materially changes the form of government) any municipal charter of a city less than 50,000 inhabitants, shall become effective until such repeal or amendment shall be voted upon by the qualified voters of the municipality, and a majority of the voters in such election shall be in favor o:fl the repeal or amendment.
CONSTITUTION OF THE STATE-Local Legislation. (Unofficial) Proposed local legislation must be advertised once a week for three succes~ sive weeks during 6'0 days immediately preceding introduction. Evidence of advertisem*nt need not be included in body of bill.
November 12, 1948 Honorable D. C. Chalker Attorney At Law
It is with pleasure that I acknowledge receipt of your very nice letter, and I am complying with your request for information concerning the advertisem*nt of local bills.
It is my personal opinion that the section of the Constitution (2-1915) on local legislation means merely that a notice of intention to ask for local legislation must be published once a week for a period of three weeks, all publications of which must take place in the sixty-day period immediately preceding the introduction of the bill to the General Assembly. In other words, as long as there is no more than sixty days between the first publication and the introduction of the bill (which introduction must of course be after the third publication), then it will comply with this constitutional requirement.
Also, you ask if the evidence that the caption of the bill had been advertised should be included in the body of the bill. It is my opinion that the evidence> that the caption of the bill has been advertised need not be set out in the body
24
of the bill but that a copy of the notice which has been certified by the publishr,r or an affidavit of the author to the effect that the notice has been published must be attached to the bill.
In reply to your third question concerning the requirr,ment for a carbon copy of all bills, there is a house rule which requires that an extra copy of a bill must be rr,tained by the Clerk, subject to use as information, the original bill being for the exclusive use by the House and the committee to which it is referred.
CONSTITUTION OF THE STATE-Local Legi>~llation (Un.official) Proposed local legislation must be advertised once a week for three successive weeks during 60 days immediately preceding introduction.
December 3, 1948 Hon. Steve M. Hall
Our mutual friend, Sol Partin, requested me to advise you of the constitutional requirements for publishing notice of intention to introduce local legislation.
The law requires the notice to be published three times within 60 days immediately preceding the introduction of the proposed bill. It has been my interprr,tation that the requirement would be met should you publish the notice three weeks consecutively next preceding the introduction of the bill.
CONSTITUTION OF THE STATE-Local Legislation (Unofficial) Where local bills rendered unconstitutional by failure to show publication, new notice of intent to introduce must be published.
December 6, 1948 Honorable R. U. Harden Attorney at Law
It is my opinion that it will be necessary for new notices to be published of intent to introduce local bills that were rendered unconstitutional because of the failure of the Clerk to show publication.
As you know, the Constitutional requirement for publication of intent to introduce a local bill is three weeks within a period of sixty days immediately preceding the introduction of the bill. Sufficient compliance would be upon evidence that the notices were published three consecutive weeks immediately preceding the introduction of the bill.
CONSTITUTION OF THE STATE-Local Legislation (Unofficial) Proposed local legislation must be advertised once a week for three successive weeks during 60 days immediately preceding introduction.
December 7, 1948 Hon. Steve M. Hall
In Re: Extension of City Limits Vid,aJiia, Toombs County, Georgia I am pleased to acknowledge your letter of December 2nd, in which you ask how many weeks a local bill must be advertised in the county organ before
25
it can be introduced in the General Assembly, and whether or not the same must be advertised 60 days before introduction.
Your inquiry is answered by Section 2-1915 of the Constitution, which provides in part as follows:
"Notice of intention to ask local legislation necessary.-No local or special bill shall b~ passed, unless notice of the intention to apply therefor shall have been published in the newspaper in which the Sheriff's advertisem*nts for the locality affected are published, once a week for three weeks during a period of sixty days immediately preceding its introduction into the General Assembly. . . . . . ."
You will note that the Constitution requires that the advertisem*nt be published once a week for three weeks durin.g a period of 60 days immedilately preceding its introduction. This does not mean that it must be advertised 60 days before its introduction. You may therefore advertise your bill any time during a period of 60 days before it is introduced in the General Assembly. For example, the bill could be advertised on December 14th, 21st and 28th and introduced any time during the month of January or the first part of February, so long as the same comes within the period of 60 days. (Underscoring ours).
The question of extending the city limits is purely a legislative matter, and as stated in your letter, the people in the affected area as well as the city itself, could properly be given the right to vote on such an issue. ~ other ins,tances, city limits have been extended without a referendum. The method to be used as stated above, is a matter of legislation discretion.
CONTRACTS-Automatic Renewal A contract providing for automatic annual renewal in absence of 30 days notice of termination is legally enforceable if notice is given after the specified date.
February 17, 1948
Hon. Lee S. Trimble Secretary-Treasurer Franklin D. Roosevelt Warm Springs Memorial Commission
I have your letter of February lOth in which you request my opm1on on whether or not you are obligated to continue the contract between the Commission and the Southern Burglar Alarm Company. You state that the burglar alarm service is no longer required by the Commission, and you enclose a copy of your letter of January 7th directed to .Mr. Bob Lee of the Southern Burgilar Alarm Company in which you request the suspension of the service until April 15th.
The contract was originally made by the Georgia Warm Springs Foundation on October 30th, 1945, but you state that it was continued by the present Commission. I call your attention to the following clause contained in the copy of the contract which you enclosed:
"It is agreed that this rental contract automatically renews itself from year to year unless second party (th~ Commission) notifies First Party in writing at least thirty (30) days before expiration date of this contract."
Your letter of January 7th to the Company is too late to cancel the contract
26
for the contract year, October 30th, 1947-1948, under the prov1s10ns of the clause above quoted. Therefore, unless the company voluntarily agrees to suspend the service and the charges, the Commission is legally bound to pay the contract price.
The Company may, at its option, remove the equipment and, although it is extremely unlikely, they could sue for damages for the breach of the contract.
Inasmuch as there seems to have been an installation fee of $250.00 and since you desire to reinstate the burglar alarm service in A,piril of this year, it would seem to be advisable from a financial standpoint to continue the contract and pay the monthly fees, if the Company insists on the contract.
It is my suggestion that you attempt to work out some settlement agreeabl to both parties without causing a complete breach of the contract.
. CONTRACTS-Conditional Sales; (Unofficial) Conditional sales contrac~ must be recorded to protect the lien of the vendor.
June 28, 1948 W older, Sheir and Schwartz Counselors at Law
This will acknowledge receipt of your letter of June 21, 1948, in which you asked whether it is necessary under Georgia law to have recorded conditional sales contracts on certain personalty manufactured and sold by one of your clients in order to protect the )i!Jn thereon until the contract is fully performed.
Section 67-1403 of the Georgia Code provides as follows: "Recording, laws governing.-The registration and record of conditional bills of sale shall be governed in all respects by the laws relating to the registration of mortgages on personal property, except that they must be recorded within 30 days from their date." Section 67-108 of the Code provides in part as follows: " .... Where a mortgage either upon realty or personalty is executed to secure the payment of money or other thing of value, and the same is not recorded as provided by law, but such mortgage is renewed or reexecuted, in every case of renewal or reexecution of a mortgage which has not been recorded, such mortgage shall operate as a lien upon the property of the mortgagor only as against the mortgagor himself and those having actual notice of such mortgage, except from the date of the record of such mortgage." Under the foregoing provisions of law, together with numerous court decisions, it will be necessary for your client to record the conditional sales contracts on personal property sold by them to purchasers in this State in order to have the full protection of the law.
CONTRACTS-Limitations (Unofficial) Statute of limitations on open accounts is four years. February 17, 1948
Mr. P. W. Phillips I beg to acknowledge receipt of your letter of February 4, 1948, in which
you request an opinion for information as to when open accounts expire by limitation in the State of Georgia.
27
I beg to advise that the Attorney General of Georgia is ptrohibited from giving opinions to anyone except the Governor and the various heads of the several State Departments, even on the request of the Governor or the: various heads of the Departments, the opinion must relate to some business in which the State is interested.
However, it is my pleasure to give you personally and unofficially the following information. Open accounts in Georgia run out of date at the expiration of four years.
CONTRACTS-State Highway Department A purported supplemental agreement between a contractor and an unauthorized member of the State Highway Department, followed by a course of dealing pursuant thereto, is of no effect unless ratified by estoppel on the part of or direct ratification by an authorized person.
January 15, 1948 Honorable J. C. Beasley, Director State Highway Department
Your letter of January 7, together with enclosures, received. You request that I advise whether or not the Highway Department could legally pay Henry Newton and Company in accordance with a supplemental agreement.
In order to answer your question it is necessary to consider the following statement of facts. On February 1, 1946, Henry Newton and Company submitted the low bid on Project fa*gM 177 (1) Stephens County. The next low bid was: submitted by Foster and Creighton and was $52,795.63 above the Newton~ Company. Contract was awarded to Newton and Company on February 25, 194t>'", construction was authorized on March 6, 1946, and the contractor began work on April 2, 1946. Work on the project was suspended on April 13, 1946, because the contractor could not carry on the construction of the project until Southern Railway Company constructed fa1sework to carry railroad traffic, the project consisting of an underpass under the Southern Railroad in Toccoa.
Southern Railway Company could not secure the necessary timber and steel for the erection of the falsework to keep railroad traffic open. The work by the railroad was not completed in time for the contracting company to perform the work in the summer and fall months. It was determined that the work should not be done in the winter months, and, therefore, the contractor was not able to begin work until March 25, 1947. The contractor submitted his bid based upon agreements for the purchase of material at the then current prices, and his agreement with material men expired December 31, 1946. The c'lntractor was able and willing to perform the work during the year of 1946, and the delay was not any fault of his or of the Highway Department. The Rai~road company worked diligently to prevent the delay.
When it became evident that the work could not be resumed untn the Spring of 1947, and the price of materials and labor was changing rapidly, the contractor made complaint concerning the delay and the unfavorable position in which he was being placed. A conference was held between M. E. Cox, who was then State Highway Engineer, and the contractor, and as a result of the conference a supplemental agreement was executed by Henry Newton and Company and National Surety Corporation, the surety for the company. The supplemental
28
agreement was approved by M. E. Cox, State Highway Engineer. The material change in the original contract is as follows:
"It is hereby agreed that if prices increase more than 2 o/o over original
quotations on the following items: Labor, Reinforcing Steel, BronzE:, Sand, Stone, Cement, Lumber and Treated Piling; then the State will reimburse Henry
Newton and Company for that portion of the increase in excess of 2% over the original quotations. If prices should decrease by more than 2 o/o from original
quotations on the eight items listed in this agreement, then the State will deduct
the decreases in excess of 2o/o from payments to the contractors."
In every other respect the original contract was preserved. Section 20-115 of the Code of 1933 provides in part as follows:
"One simple contract as to the same mattE:r, and on no new consideration, does not destroy another between the same parties;*****'.''
Section 20-116 of the Code provides as follows: "Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such dE:parture, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given the other of intention to rely on the exact tE:rms of the agreement. Until such notice, the departure is a quasi new agreement.'' You state in your letter that the contractor has been at work on the- project since March 25, 1947, and is now about to complete same and that monthly statements have been submitted in accordance with the supplemE:ntal agreement and have been paid in the sum of approximately $45,000.00. While it is true, as recognized by the Code Sections hereinbefore cited, that parties may depart from the terms of the original contract, and that such de:parture will imply a modification of the contract, in order for the rule to apply it is necessary that the circ*mstances be such as will in law imply a mutual new agreement, so that the modification when taken in connection with the new contract will provide a new and distinct agreement, complete in its terms. Morrison v. Roberts, 195 Ga. 45, 46. There must be a new consideration supporting the new or supplemental agreement. Garvin v. Worthington Pump and Machinery Corp., 62 Ga. App. 240. From the information submitted there seems to have bE:en a mutual understanding and agreement between the contractor and the Highway Engineer, who purported to be acting for the Highway Department. The new considE:ration is injected into the contract by reason of the delay and the increased prices of materials, and by the mutual agreement to protect the Highway DE:partment, should the price of materials decrease. It must, therefore, be determined whether or not the State Highway Engineer had authority to bind the Highway Department on a supplemental agreement. Under the 1943 Act codified in the Pocket Part of the Annotated Code, Section 95-1606, the Highway Director is vested with the duties and powers of the management and control of the State Highway Department. The State Highway Department has authority to plan and construct, improve and maintain the State-aid roads in any manner it may deem expedient, by free labor, by contract, or by any other method or combination of methods in its discretion. Code Section 95-1715, Pocfet Part, Annotated Code. Under the authority vested in the Director by the Code Sections referred to, I am of the opinion, that the Director has ample power and authority to enter
29
into a contract supplementing an original contract in the manner as was proposE:d in the dealings with Newton Company. I do not find any statute which gives such authority to any other person. I, therefore, do not think that the act of approval by the Highway Engineer had the effect of ma<king a binding contract against the State Highway Department to change the terms of the original contract.
It is questionable whether or not the course of dealings by the contractor with the other officials of the Department, the filing of statements, and the payment of monthly estimates would be binding upon the Highway Department. If such a course of dealing was carried on with the knowledge and consE:nt of the Director, it would, no doubt, constitute a ratification of the supplemental contract and the State would be bound by such supplemental agreement.
I am of the opinion, that you, as Director, have the power and authority to ratify at this time the supplemental agreement and the course of dealings between the contractor and Department and to legally pay the contractor according to the supplemental agreement, if you think proper to do so.
CORONERS-Certificates (Unofficial) Sets out provisions of Code relating to duties of coroners.
February 17, 1948 Thomas Funeral Home
Att: J. W. Thomas. Your letter of January 28, 1948, in which you request literature in regard to coroners, addressE:d to the Department of Public Health, has been referred to the Law Department for reply. The Attorney General of Georgia is not authorized, under the law, to render official opinions to anyone except the Governor or the heads of the sE:veral State Departments. Therefore, you will understand that the information given herein is strietly personal and unofficial. I am advised by the Department of Public Health that it has no literature in regard to the subject-matter of your lettE:r. Subsection 2 of Section 88-1116, Pocket Part of the Annotated Code of 1933, on page 61, reads as follows: "(2) In preparing a certificate of death, the person in charge of interment shall obtain and enter on the certificate the personal data required by the Board from the persons best qualified to supply them. He shall present the certificate of death to the physician last in attendance upon the deceased or to the coroner having jurisdiction who shall thereupon certify the cause of death according to his best knowledge and belief." Subsection 3 of said above Section reads as follows: " (3) Thereupon the person in charge of interment shall notify the appropriate local registrar." Subsection 4 of said Section rE:ads as follows: " (4) Deaths upon criminal violence, or by a casualty, or by suicide, or suddenly while in apparent health, or when unattended by a physician, or in any suspicious or unusual manner, shall be reported forthwith to the county coroner, who shall execute a certificate of dE:ath upon a form prescribed by the Board." Section 88-1117 reads in part as follows: "Stillbirths without medical attendance shall be referred to the county or
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city health officer or, if there is no health officer, to the coroner, who shall exEocute the stillbirth certificate. The form of stillbirth certificate shall be prescribed by the Board."
In regard to other duties of coroners you will find the law pertaining thereto in the Annotated Code of Georgia of 1933, and also in Sections 6'8-318 and 21-105 of the said Pocket Part of said Code. There are several Sections of the Code setting forth the duties of coroners which you will find therein. You will find these Sections listed in the General Index of said Code on page 149.
CORONERS-Fees (Unofficial) A coroner making an investigation which shows that an inquest is unnecessary is entitled to the same fees as the Sheriff. June 11, 1948
Hon. J. D. Rainey, Coroner I am pleased to acknowledge your lEotter of June 7th, in which you ask
whether or not as coroner, you are entitled to receive a fee from the county when you make an investigation, but find that an inquest is unnecessary.
Under the Constitution and laws of this State, the Attorney General is prohibited from rendering an official opinion to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the .operation of the State government. For this reason, I can not give you an official .opinion on the above question, but I am glad to refer you to the provisions of law relating to this subjEoct.
Section 21-203 of the Code provides as follows: ''No inquest shall be held over any dead body when the cause of the death was violence, or accident, or act of God, in the presence of witnesses, unless some person makes affidavit of facts raising a suspicion of foul play, whEon an inquest shall be had, but at the expense of the party making the affidavit. Upon such inquest, if it should appear that the death was caused by violence and foul play, and the person guilty of the act is arrested, the person paying the cost of the inquest shall be repaid by the county trEoasurer upon an order from the judge of the superior court of the county.'' Section 21-105 of the Code provides: "Coroners' fees shall be as follows, to wit: Summoning an inquest on a dead body and returning an inquisition $10.00 Furnishing coffin and burial expEonses ............................._____..______ ..____ 15.00 When performing the duties of a sheriff, his fees are the same as a sheriff's. No coroner shall receive out of the county treasury more than $1,500 per annum, either as fees for holding inquests or for burying the dead bodies." Since the county is responsible for the paymEont of your fees, it would be my suggestion that you discuss this matter with the county attorney, since he is in a position to officially advise you in the premises.
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CORPORATIONS-Foreign (Unoffici&Jl) 1. Regulations relating to foreign non-profit corporations are found in Ga. L. 1946, pp. 687-690. 2. In fixing fees for such corporations no distinction is made between profit and non-profit organizations.
January 22, 1948 Mr. Roy E. Appleman Rt>gional Historian, United States Dept. of Interior National Park Service
I wish to acknowledge receipt of your letter of recent date in which you inquired as to any restrictions or regulations in the laws of Georgia which would apply to the functioning of a non-profit association, incorporated under the laws of Virginia.
Please be advised that the Attorney General of Georgia is prohibited by law from rendering official opinions to anyone except upon request of the Governor Ol' the heads of the various State Departments; therefore, any statement made herein is to be considered strictly personal, unofficial and not binding on anyone.
So far as I can ascertain, the Georgia law makes no distinction between non-profit foreign corporations and foreign corporations generally.
If you will refer, or have your attorney to do so, to 1933 Georgia Gode, Annotated, Sections 22-1501, 22-1502, 22-1503, 22-1504 and 22-1505 and to Georgia Laws 1946, pages 687-690, I believe you will find your question completely answered. You will find both a copy of the Georgia Code, Annotated and a copy of the Ga. Laws 1946 in your State Law Library, I am sure; however, if you should have difficulty in securing these books, I will be glad to have copies of the referred to sections made and sent to you.
The above referred to Code Sections deal with the recognition of foreign corporations by comity and the Act of 1946 provides for the registration of such foreign corporations and payment of fee to the Secretary of State of Georgia, among other things.
CORPORATIONS-Motor Carriers (Unofficial) Sec. 68-618 relating to service of process on non-resident carriers applies to motor carriers.
May 25, 1948
Honorable H. F. Rawls Attorney at Law
This will acknowledge receipt of your letter of May 19th addressed to Honorable Eugene Cook, Attorney General, which has been handed to me in the absence of the Attorney General from the city on official business.
I have carefully considered Georgia Laws 1946, p. 687, dealing with foreign <Corporations, and Code Section 68-618, dealing with service of process upon -~J:On-resident carriers as mentioned in your letter.
I do not find that Code Section 68-618 has been repealed by implication or <Qtherwise. It is to be noted that Georgia Laws 1946, p. 687, Seotion 5, provides that the provisions of the Act as regard service upon foreign corporations are
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cumulative of other laws on the same general subject, and that Section 6 of the same Act states that none of the provisions of the Act apply to any foreign corporation which is now required by the laws of Georgia to file a copy of its charter with the Comptroller General, or Insurance Commission, and to designate an agent for service.
I am of the personal opinion that Code Section 68-618 is applicable for service of non-resident motor carriers; however, there is some doubt due to the conflict in the wording of the two statutes, and I would certainly want you to exercise your own judgment in the matter and not rely upon any statements that I have made with regard to Section 68-618.
You understand that the Attorney General is not authorized to render official opinions except upon request of the Governor or the heads of the respective State departments, and the matter then must deal with subjeds in which the State is involved. Therefore, the statements in this letter are my own personal views, and are not binding upon the Attorney General or anyone.
COUNTIES-Advertising In computing cost of legal advertising, punctuation marks may not be included.
April 22, 1948
Honorable Tom Wisdom Treasurer, State Highway Department
In Re: Legal Rates for Legal Advertising. In reply to your request for an opinion as to the correct legal rate for publication of legal advertisem*nts, and particularly your inquiry as to the publisher's legal right and authority to count marks of punctuation, such as commas, semicolons, and other such marks of punctuation, in determining the publication costs of a legal advertisem*nt, advise as follows: In the beginning your inquiry is answered in the negative, that is, he has no such legal authority to fix his charges on this basis. For the purpose of ascertaining the number of "words" in a legal advertisem*nt to determine the cost thereof, as the law provides, "punctuation marks" can not be considered and counted. On this subject the Code, Section 39-1105, provides as follows: "The rates to be allowed to publishers for publishing legal advertisem*nts shall be as follows: For each 100 words, the sum of $1 for each insertion for the first four insertions; for each subsequent insertion, the sum of 50 cents per 100 words.*'****" The foregoing section fixes the basis for the legal rate on the number of "words" in the published context and on words only, and in dealing with this section, "punctuation marks" can not be in any sense construed as "words". While we do not find the courts of our State have ever considered this particular question, we do find that the courts of other states have definitely adjudicated the question. In the case of Walsh v. Jackson, 81 P. 258, 259; 33 Colo. 454, (Coirpus Juris 71, 22) the court held: "In construing a statute providing that the stenographer transcribing the shorthand notes of the testimony shall be allowed not exceeding twenty cents
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per folio of one hundred words, the court said: 'It is so clear that the compensation of the stenographer is to be determined by the number of words transcribed, and not by the number of punctuation marks... .' "
In re Murtaugh, 128 N. Y. S. 850, 851, 71 Misc. 513 (Corpus Juris 51, 91) the court held:
"in determining an allowance for taking and transcribing testimony, means words and figures, but not punctuation; the word 'figure' being limited to numerals, which are letters or characters representing a number, and not including 'punctuation' which is a pointing off or separating of one word from another by arbitrary marks."
However, in our only Georgia case on this subject, Groover v. Cook, Adm., 113 Ga. 612, this ~uestion was not in issue; only a ruling to the effect that the fractional pa;rt of 100 words shall be charged for on same rate.
It appears that an opinion of the Law Department is sought on this question by reason of a controversy between the Highway Department and the "Walker County Messenger" in which controversy the publisher contends he is entitled to the count of "every comma, semi-colon, period, parenthesis, quotation marks, initials, etc., as one word" in recent published "purchase order bids" for the Highway Department; and in support of this contention the publisher states that:
"Some years ago this question came up and I secured a ruling from the Attorney General on this point, and he quoted the act specifying the manner of count and what to count. I cannot remember just now what section in the Code this is, but I am positive the above are all to be counted under the law."
Evidently the "publisher'' has in mind the ruling of the Attorney General, August 14, 1933 (addressed to the same "publisher") page 100 of the 1933-34 Opinions of the Attron,ey General; in which ruling the case of Groover v. Cook, Adm., 113 Ga. 612, previously referred to herein was cited.
Therefore, it is my opinion that th~ legal rate charges for legal advertisem*nts, as provided for in Section 39-1105 of the Code, is confined to the number of words in the publication, exclusive of punctuation marks.
COUNTIES-Advertising (Unofficial) In legal advertisem*nts figures may be charged for but punctuation marks may not.
May 21, 1948
Mr. E. P. Hall, Publisher
Walker County Messenger
I am pleased to acknowledge your letter of May 13 requesting my opinion
as to whether a charge can be made for figures and punctuation marks in count-
ing legal advertisem*nts.
Our Code Section 39-1105 provides:
"The rates to be allowed to publishers for publishing legal advertisem*nts
shall be as follows: For each 100 words, the sum of $1 for each insertion for the
first four insertions; for each subsequent insertion, the sum of 50 cent!'! per 100
words. In all cases fractional parts shall be charged for at the same rates; and
no ordinary, sheriff, coroner, clerk, marshall or other officer shall receive or
collect from parties, plaintiff or defendant, other or greater rates than herein
set forth.''
~
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Now the problem is whether figures and punctuation marks can be included under the general term of words. This problem. was discussed in In Re Murtaugh, 128 N. Y. Supp. page 850. This case involved the construction of a statute which provided that a folio was to consist of 100 words. This statute also counted as a word e:ach figure necessarily used. The court excluded punctuation marks from the operation of that statute due to the fact that they were not part of the words uttered by the speaker, while figures were 'a part of those words. As that statute is more broad than our statute and the reasoning as to punctuation marks seems to me to be good, I have: no doubt that under our stiatute punctuatiOin marks cannot be charged for.
The question now arises as to whether in the absence of an express statutory inclusion, figures may be considered as words. Webster'sNew International Dictionary provides that figures are a part of the English :Language so far as concerns the re:presentation of numbers, and as these are a vitally essential part of the advertisem*nt, I have no doubt that they can be considered as words under our statute.
The distinction between figures and punctuation marks seems to be that the punctuation marks add expression and meaning to the written words, whereas figures are a substantive part of the advertisem*nt. Therefore, my answer to you is that figures may be le:gally charged for and that punctuation marks may not be charged for.
As the Attorney General is prohibited by law from rendering official opinions to anyone other than the Governor and heads of the various State departments, anything said in this letter must be conside:red as merely an expression of my personal view on this subject and not binding on anyone.
COUNTIES-Commissioners (Uno.fficial) A member of the State Board of Education may at the same time be a member of the County Commissioners.
February 11, 1948 Mr. M. L. Clark
This will acknowledge receipt of your letter of January 21, 1948, in which you request that I give you an opinion on the following questions:
"Is it legal to be a member of the State Board of Education and hold office as a me:mber of County Commissioners at the same time by one and the same person?"
I am prohibited by law from giving an opinion to anyone except the Governor and the heads of the various departments of State, and then only upon matters in which the interests of the State are involved. There:fore, I am not permitted to give you an opinion on the question that you ask.
As a matter of information only, which is not binding upon anyone in any manner whatsoever, but in order to be of any assistance I can to you, I am pleased to advised that I know of no prohibition unde:I' the law which prohibits a county officer from holding a State office, providing the duties are not inconsistent with each other.
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COUNTIES-Commissioners (Unofficial)
County Commissioners may not make a contribution to a club for improve-
ments to be used by the citizens of the county for recreational purposes.
May 5, 1948
Hon. Thos. E. Dawson
Solicitor, City Court
I am pleased to acknowledge your letter of May 3rd, in which y:ou state
that the Board of Commissioners of Roads and Revenues of Long County desire
to contribute money to the Long County Garden Club to be used in the purchase
of a building which will be used for the use of the citizens of the cpunty for
meetings and recreational purposes. You state that the deed to this building is
made in the name of the Long County Garden Club. You further state: "The
County Commissioners of Long County passed a resolution directing the Clerk
of the Board to pay to the Garden Club of Long County the sum of $500.00 as
a contribution to the Garden Club for the purposes of purchasing the community
center, and in this resolution they directed the Clerk not to pay this sum until
and unless the County Attorney advised him that it was legal for them to use
money for this purpose."
As you have stated in your letter, the Attorney General is prohibited by
law from rendering an official opinion on the question presented in your letter,
since this matter properly addresses itself to you as County Attorney. I am glad
however, to refer you to certain provisions of the Constitution of Georgia and
decisions of our Supreme Court which may be of some benefit to you in deciding
this issue. Section 2-5701 of the Constitution sets forth the limitations on the
taxing power of counties. It prohibits the General Assembly from delegating to
any county the right to levy taxes except for the purposes enumerated in the
Constitution. In your case as I understand it, the General Assembly has not
authorized the contribution in question, but the same arises rather at the
instance and request of the County Commissioners. Of course it would logically
follow that county officials could not exercise any powers which were refused
the General Assembly because of constitutional restrictions.
Section 2-5801 of the Constitution provides:
"The General Assembly shall not authorize any county, municipal corpora-
tion or political division of this State, through taxation, contribution or other-
wise, to become a stockholder in any company, corporation or association, or to
appropriate money for, or to loan its credit to any corporation, company, asso-
ciation, institution or individual except for purely charitable purposes. This
restriction shall not operate to prevent the support of schools by municipal corp-
orations within their respective limits."
In Hu,mber et al. v. Dixon et al., 147 Ga. page 480, the Supreme Court of
Georgia states the following principle of law:
"(2) While a large discretion in the expenditure of public money is neces-
sarily vested in the officers of the county who have charge of its affairs, such
discretion does not extend to the appropriation of public moneys beyond the
specified purposes enumerated in the constitution. It follows that the commis-
sioners of roads and revenues of a county have no authority to employ an attor-
ney to represent them in a proceeding before the prison commission for the dis-
charge of the warden in charge of the convicts in that county, and to pay such
attorney his fe and expenses incurred in that service.''
As pointed out earlier herein, this letter is not to be construed as an official
36
opinion or in any way binding upon the county, the Long County G13orden Club, or any one else. It is my purpose to simply give you the benefit of the authori~ ties cited above in the hope that they will be of some assistance to you in making a satisfactory determination of the question presented. It is always my desire to render any service or information that I can to our local county attorneys in order to be helpful to them in the discharge of their duties.
COUNTIES-County Organ (Unofficial) An official county organ must have had an existence of two years or be a successor to a newspaper fulfilling this requirement.
March 31, 1948 Mr. L. J. Yarbrough
This will acknowledge receipt of your letter of March 26, 1948, requesting that I advise you as to how long a newspaper has to be in business before they are eligible to run legal advertising, which has been referred to me for reply due to the Attorney General being engaged in the trial of a case in court.
The Attorney General and his assistants are prohibited by law from giving opinions to anyone except the Governor and the heads of the various departments of the State, and then only upon matters in which the State is involved. Therefore, anything that I may say in reply to your letter is to be considered purely as information and not binding upon anyone in any manner whatsoever.
Section 39-1103 of the 1933 Annotated Code provides: "Selection of official organ.-No journal or newspaper published in this State shall be declared or made the official organ of any county for the publication of sheriff's sales, ordinary'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, unless such newspaper shall have been continuously published and mailed to a list of bona fide subscribers for a period of two years, or is the direct successor of such journal or newspaper, :and no change shall be made in the official organ of any county except upon the con-current action of the ordinary, sheriff and clerk of the superior court of said county or a majority of said officers: Provided, that in counties where no journal or newspaper has been established for two years the official organ may be designated by the ordinary, sheriff and clerk of the superior court, a majority of these officers governing. (Acts 1910, p. 87.)"
COUNTIES-Hos.pital Authority (Unofficial) The provisions of law defining the power and authority of the Hospital Authority are contained in Acts of 1941, pp. 241-250.
June 16, 1948 Mr. L. D. Ewing
Your letter to Mr. Eugene Cook, Attorney General, with reference to the Hospital Authority of Gwinett County, has been referred to me for answer.
The Hospital Authorities Law is fully set out in Book 28 of the Code of 1933, Supplemental Section, Annotated, Chapter 99-15. This act was passed in 1941 and fully defines the powers and authority of your board. You) will also find it
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in the Acts of 1941 pages 241-250. Should you have difficulty in obtaining access to the Annotated Code carrying the law, I think you will,~ find the Acts of the Legislature in the hands of any Justice of the Peace in your locality, and you can thereby familiarize yourself with the law.
The act is thorough and covers the points raised in your letter.
COUNTIES-Officers (Unofficial) 1'. To implement the Constitutional provision for supplementing salaries of Qffictrs, a local or special bill must be passed. 2. Any local law proposed pursuant to the above Constitutional provision must have attached to the Bill a copy of the published notice of intention to apply therefor. April 1, 1948
Honorable J. D. NeSmith Clerk, Superior Court
I wish to acknowledge receipt of your letter of March 23, 1948, in which you request a ruling on the law passsed at the last GE:neral Assembly to supplement salaries Of the county officers of Bleckley County.
The Attorney General of Georgia is not authorized under the law, to rendE:r opinions or give advice to anyone except the Governor and the various heads of the State Departments, and then only upon mattE:rs in whic~ the State is interested as a party. Therefore, this letter must be construed as being purely personal and unofficial and as not binding upon anyone.
Replying thereto I wish to state that under Article XI, Section 2, Chapter 2-79, Paragraph 2 of Section 2-7902 of the new Constitution county officers may be on a fee basis, salary basis, or fee basis supplemented by salary, in such manner as may be directed by law. In ordE:r to carxy this Paragraph of the new Constitution into effect it would be necessary to pass a loca~ or special bill for such purpose.
Article II of the new Constitution, Section 7, Paragraph 15 of Section 2-1915 sets forth the procedure necessary to pass a local or special bill to carry into effect the provisions of the above paragraph. The Supreme Court of Georgia in construing this Section in the case of Smith, et al. v. McMichael, e.t ail. decided on October 24, 1947, which will be found in the Advance Sheets of the Southeastern Reporter, January 15, 1948, page 431, et seq. held tha1J in order to pass a special or local bill it would be necessary for the bill to have attached thereto the notice of intention to apply for the passage of a local or special law, a copy of such notice certified to by the publisher of the paper in which it was advertised, or by an affidavit of the Representative introducing such measure; that the said notice was an integral part of the bill, and any bill passed without this notice being attached did not comply with the provisions set fortij in the above section, and therefore, was unconstitutional and void. The above section reads in part as follows:
"No local or special bill shall be passed, unless notice of the intention to apply therefor shall have been published in the newspaper in which the Sheriff's advertisem*nts for the locality affected are published, once a week for three WE:eks during a period of sixty days immediately preceding its introduction into the General Assembly. No local or special bill shall become law unless there is
38
attached to and made a part of said bill a copy of said notice certified by the publisher, or accompanied by an affidavit of the author, to the effect that said notice has been published as provided by law."
The court further held that the enrolled copies of the bill passed not having a copy of said notice attached therE:to, (the enrolled copy being an exad copy of the original bill), was conclusive evidence as to the failure to ciomply with the provisions of the above paragraph and that the court could not go pehind the enrolled bill to determine whether or not the notice was actually published as required by law. In the case cited the E:nrolled bill did not have. a copy of the notice of intention attached thereto.
The question involved is a constitutional question and it would be improper for the Attorney General of Georgia to give an official or unofficial ruling as to the constitutionality of the Act supplementing the salaries of the officers of Bleckley County. All constitutional quE:stions are determined by the Supreme Court of Georgia and, therefore, I can not express an opinion in regard thereto.
You will understand, therefore, as above stated, that the facts stated in this letter are given only as unofficial information and not) as an opinion of the Attorney General.
COUNTIES-Officers-Fees Provision fixing costs of "sheriff or other officers of any county" for collecting tax executions includes constable. December 27, 1948
Honorable G. A. Rosencrance I am pleased to acknowledge receipt of your letter of December 17, f948, Under the law I am prohibited from giving opinions to anyone except the
Governor and to the heads of the various State Departments. Notwithstanding this limitation, however, I am pleased to be of assistance to our county officials whenever I can by giving helpful information. Anything that I may say in reply to your letter is to be considered as information only and not binding upon anyone in any manner whatsoever.
Section 92-8001 of the 1933 Annotated Code of Georgia provides: "Whenever the sheriff or other officer of any county shall collect any tax execution over $100, he shall be entitled to $1 for costs; and for collecting any tax execution of $100 or under, 50 cents for costs.'' The term "other officer of any county" as used in thE: above Code Section covers the office of Constable and I do not find any amendment or rep~al of the provision. It would appear that Constables would be prohibited from receiving fees other than those specified herein for such services. The term "each return by officer" referred to in your letter which is contained in Section 24-820 of the 1933 Annotated Code of Georgia, Pocket Supplement, has reference to returns and not costs for collecting tax executions.
COUNTIES-Supplies (Unofficial) County Commissioners must bear the cost of printed forms used in recording mortgages. March 3, 1948
Hon. R. S. Wimberly Attorney at Law
I have your letter of February 26th in which you request my unofficial opinion on the following question:
"Are the County Commissioners required to pay for printed pages used by the Clerk of the Superior Court in recording mortgages."
As you know, the Attorney General is prohibited by law from rendtring official opinions to anyone except the Governor and the heads of the viarious State Departments; therefore, this is to be construed as a strictly ptrsonal and unofficial opinion and not binding on anyone.
As you have pointed out, Code Section 91-704, makes it the duty of the Ordinary or Board of County Commissioners or other County authorities to furni~h " . . . . . records and office supplies in general for the different county offices of the County at the expense of the County . . . . ." This section wa.s construE:d in FJioyd County vs. Graham (24 Ga. App. 294), to mean that County officers are entitled to have supplies and equipment "reasonably necessa;ry to maintain (the) office in a .modern, up-to-date manner, corresponding with offices of similar character responsible for a like amount of work".
It seems to me that the use of printed mortgages for rE:cording long ilnstruments is a reasonable practice, and one which modern methods would indicate to be a necessary practice. At any rate, it is certainly a widesprE:ad practice, and results in economy of labor by obviating the arduous task of copying long instruments.
If this be true, it would seem that the County Commissioners are bound to furnish such printed pages to the Clerk, and it is my personal opinion that they are so bound.
You point out, howE:ver, that the Clerk receives his fees for recording instruments, and I take it that the Clerk has not decreased the fees allowed him by Code Section 24-2727 when printed instruments are recorded. I can readily understand how this may seem unjust to you, inasmuch as it seems that the Clerk is charging fees for work which the County Commissioners have paid other persons to do.
We should not overlook the fact that the fee charged by the Clerk is not merely for the copying of instruments to be recorded, but also1 covers the expE:nse of indexing, supervision of the records (see Opinion of M. J. Yeomans, Attorney General, 1933-1934 page 103), etc.
If a situation has arisen which is grossly inequitable to the Commissioners, I would suggest that an adjustment of the inequity be worked out between the Commissioners and the Clerk.
However, it is my opinion, as above stated, that the Commissioners are bound to furnish such printed forms as are reasonably necessary to the Cleork and to bear the costs of such forms.
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COURTS-Constables (Unofficial) Lists duties and fees of constables.
December 14, 1948 Honorable H. L. Ledbetter Deputy Sheriff, Decatur County
This will acknowledge receipt of your letter of recent date in which you requE:st the following information: the duties and authority and lawful fees of elected constables.
First, it will be necessary for you to take the oath of office, as directed in Section 24-804 of the Code of Georgia.
It is the duty of the constable to serve all papE:rs placed in his hands, aln~ return to the Court with a written statement of his acts thereon. This includes criminal warrants as well as summons in civil matters.
It is the duty of the constable, (1) to attend regularly all terms of the justice courts in their respE:ctive districts; (2) to attend all terms of the superior courts of their respectivE: counties when summoned by the sheriff for that purpose; ( 3) to give receipts and notes or other liquidated demands pla:cE:d in their hands for collection; (4) to pay over money promptly as collected to the party entitled thE:reto and, in case of conflicting claims to any money, tq report the same to the next Justice court of the District where they are amenable for its order in the premises; (5) to execute and return all warrants, summons, executions and other processes to them directed by lawful authority. You make inquiry as to fees. You will find in Code Section 24-820 the following shall be the fees for constables of the militia districts. Code Section 24-821 provides 15c per mile by the most direct route from the place of commitment to the common jail of any county. Code Sedion 24-811 makes a provision for bonds for constables. Code Section 24-602 provides that every justice of the peace or constable shall keep a printed or plainly written copy of the fee bill posted in some conspicuous place in his office, and upon failure to do so, or upon violation of any part of this section, shall be guilty of malpractice. If you will read Chapter 24-8 of the CodE:' of Georgia, you will find all of your duties defined therein. Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of StatE: upon matters pertaining to the interests of the State. How:ver, it is a pleasure for me to refer you to the provisions of law applicable to your questions as a matter of information.
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COURTS-Constables A constable deputized by sheriff becomes de facto deputy sheriff.
December 28, 1948 Hon. Carl Griffin, Ordinary Floyd County
I am pleased to acknowledge your letter of December 26'th, in which you ask whether the Ordinary is entitled to a fee for filing and recording official bonds of certain officers. You state that there are 19 districlts in your county, and nearly every one has two constables and you desire to know whether or not the constables are included under the provision of law applying to county officers.
There are several cases decided by our appellate courts! holding that a constable who is deputized by the sheriff becomes a de facto deputy ~heriff. In Strickland vs. Stricklan.d, 24 Ga. App. page 200, the Court held:
"Where a constable is specially deputized by the sheriff and sworn iru for the purpose of serving a particular writ, he becomes a de facto deputy she~iff, and service by him is legal."
To the same effect, see Twiggs vs. Hardwick, 61 Ga. p. 273. Since the question you ask is one which primarily concerns the operation of the county, it would be my suggestion that this matter be presented to your county attorney who is in a position to give you an official ruling in the premises. I believe that the cases cited above will throw some light on the proper answer. Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. For this reason I am prohibited from giving you an official opinion on this question.
COURTS-Jurors (Unofficiall) Jurors may receive compensation of not less than $2.00 nor more than $6.00 a day.
July 27, 1948 Honorable J. W. Bomar
This will acknowledge receipt of your letter of July 28, 1948 addressed to the Attorney General with reference to the pay of Jurors, which has been referred to me for reply in the absence of the Attorney General.
Section 2-5103 of the Constitution of Georgia of 1945 provides that it shall be the duty of the General Assembly by gEoneral laws to prescribe the manner of fixing compensation for Jurors in all counties in this State. The Constitution further provides under Section 2-8003 that "all laws now of force in thisi State not inconsistent with the Constitution shall remain of' force until the same are modified or repEoaled by the General Assembly."
Section 59-120 of the Code of 1933 provides that the G'i.'and Jury should fix compensation of Jurors and Gourt Bailiffs in the Superior Courts not to exceed $3.00 per diem. This section was amended by an act of the General Assembly in 1946 (Ga. Laws 1946 p. 72) and reads as follows:
"Compensation of jurors and court bailiffs.-The first grand jury impan-
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eled at the fall term of the superior courts of the several counties shall fix the compensation of jurors and court bailiffs in the superior courts of such counties for the next succeeding year, such compensation not to be lE:ss than $2 nor to exceed $6 per diem; and the same compensation shall be allowed to bailiffs and jurors of the several city courts and special courts in which such city or special court may be located. The pay of tales jurors shall be the same as the regularly drawn traverse jurors."
COURTS-Juatice of the Peace (Unofficial) A Justice of thEJ Peace may also be a member of the Board of County Commissioners
January 13, 1948 Hon. V. E. Bentley Justice of the Peace
I have your letter of January 8th in which you request my opinion on the following questions:
1. May a Justice of the Peace serve as a member of the Board of County Commissioners?
2. May a Justice of the Peace serve as a member of the City Council or Mayor?
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the heads of the various State Departments; however, I will be glad to assist you with information :on this matter, but the information given herein is to be <!.onsiderE:d strictly personal and unofficial and not binding on anyone.
As to question 1: The Georgia Code, Section 23-920 provides that no member of the County Board of Commissioners of Roads and Revenue shall be eligible to hold any other County office while a member of such Board. W'e must, therefore, determine whether or not the office of Justice of the Peace is a County office. One of my predecessors in office, the Honorable Ellis Arnall, ruled in an unofficial opinion in 1940, that the office of Justice of the Peace was not a County office and that, therefore, a Justice of the PE:ace might hold county offices, such as membership on a County Board of Education. Atfter examining the legal authorities, I concur in this opinion and I see no legal objection to a Justice of the Peace being a member of the Board of County CommissionE:rs.
As to question 2: The qualifications for councilmen and mayor of the specific city involved, as prescribed by the City Charter, must be considered. I am presuming that you are concerned with the City of Logansville, Georgia, and I have, therefore, E:Xamined the Charter of that City. I find therein no legal bar to prevent a Justice of the Peace from being a city councilman or mayor.
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COURTS-Justices of the Peace (Unofficial) Code provisions relating to payment by counties of costs of Justices of the Peace in issuing criminal warrants.
February 4, 1948
Judge M. M. Scott Justice of the Peace
I wish to acknowledge rectipt of your letter of January 30, 1948,i in which you request information in regard to when counties become! bound for the payment of costs to the Justice of the Peace in issuing crimina! warrants.
Replying thereto, wish to state that the Attorney General is not authorized under the law to render official opinions or information upon matters tXCept when directed by the Governor or the heads of the several State departments, and then only upon State matters. Therefore, you will understand that the information given herein is strictly personal and unofficial.
It gives me pleasure to unofficially cite you certain sections of the Code of Georgia in regard to the subject matter of your letter:
Section 27-2902 of the Annotated Code of Georgia of 1933 reads as follows: 1'The officers of the several courts, including the prosecuting officers, shall pay into the county treasury of the county where said court is held all money:SI arising from fines and forfeitures by them collected, and, on failure to do so. shall be subject to rule and attachment, as in case of defaulting sheriffs. Noi such officer shall be required to pay into the treasury, as aforesaid,; \any suiCh moneys, until all the legal claims on such funds held and owned by said offi~r bringing the money into court, and the costs due the justices and constables in the particular case by which the funds for distribution were brought into court, shall have been allowed and paid." Section 27-2904 of the Code rtads as follows: "The moneys so paid in shall be kept separate and distinct from the county funds arising from other sources, and distinct and separate accounts of said funds shall also be kept as to what court the same was received from, by the county treasurer, and the same shall be paid only for insolvent costs, and in cases where defendants have been acquitted in the manner hereinafter directed." Section 27-2905 rtads as follows: "Any officer having a claim against said fund for insolvent costs, or in cases where defendants have been acquitted, if the same accrued in the suptrior court (or a magistrate's court prior to indictment), shall present to the judge of the superior court an itemized bill of costs claimed; and if the same shall be approved by him, he shall order the same entered on the minutes of the court, and the same shall be a warrant on the county treasurer, to be paid by him out of any fines and forfeitures in the treasury received from the superior court.'' Section 27-2915 reads as follows: "All justices of the peace and notaries public who are ex-officio justices of the peace, and constables of the State of Georgia, shall be compensated in criminal cases in the way and manner hereinafter prescribed." Section 27-2916 reads as follows: "Said officers above named shall present their bill of costs to the clerk and judge of the superior court of their county at each term of said superior court, which bill shall be itemized, and with the affidavit of such officer who is seeking paymtnt of his costs, that said itemized statement is correct a.nd that none of
44
said bill of costs has heretofore been paid by the county or the prosecutors or defendants or any other parties. It shall then be the duty of said clerk and judge of the superior court to examine said itemized statement, and certify as to whether they approve or disapprovE':' such bill of costs, and if disapproved in part, that part which does not have the approval of both the judge and the clerk shall not be paid by the county, and if disapproved in whole, none of said bill shall be paid. However, if said bill is approved in part, the_part approved by' both the judge and the clerk, shall b& paid, as hereinafter provided."
Section 27-2917 reads as follows: "The approval of said bill of costs in whole or in part shall operate as ajn, order to have same entered on the minutes of the superior court, and shall operate further as a warrant in the county treasurer, to be by said county treasurer or other proper county officer or officers in charge of the fiscal affairs of the county in which said justices hold office, paid out of the general treasury, to the extent in which said bill is approved." Section 27-2919 reads as follows: "The provisions of this law (Sections 27-2915 to 27-2919) shall only apply to criminal cases, wherein, a warrant or warrants have been issued and. have xesult&d in an accusation of an indictment and a conviction has been had on same." Sections 27-2915, 27-2916, 27-2917 and 27-2919 are codified fxom the Acts of 1943, pages 539 to 540, inclusive, and axe found in the podket paxt of the Annotated Code of Georgia of 1933 on pages 182 and 183.
COURTS-Justices of the Peace (Unofficial) !Siets out Code provisions relating to payment by counties of costs to Justices of the Peace.
February 17, 1948 Judge Myrton M. Scott Justice of the Peace
Your letter of January 29, 1948, addressed to the Comptroller-General, in which you request information in regard to when counties become bound to payment of costs to Justices of the Peace, has been refened to the Law Department for reply.
Replying thereto, wish to state that the Attorney General is not authorized under the law to render official opinions or information upon matters except when directed by the Governor or the heads of the several State departments, and then only upon State matters. Therefore, you will understand that the information given herein is strictly personal and unofficial.
It gives me pleasure to unofficially cite you certain sections of the Code of Georgia in regard to the subject matter of your letter:
Section 27-2902 of the Annotated Code of Georgia of 1933 reads as follows: "The officers of the several courts, including the prosecuting officers, shall pay into the county treasury of the county where said is held all moneys arising fxom fines and forfeitures by them collected, and, on failure to do so, shall be subject to rule and attachment, as in case of defaulting sheriffs. No such officer shall be required to pay into the treasury, as aforesaid, any such moneys, until all the legal claims on such funds held and owned by said officer
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bringing the money into court, and the costs due the justices and constables in the particular case by which the funds for distribution were brought into court, shall have been allowed and paid."
Section 27-2904 of the Code reads as follows: "The moneys so paid in shall be kept separate and distinct from the county funds arising from other sources, and distinct separate accounts of said funds shall also be kept as to what court the same was received from, by the county treasurer, and the same shall be paid only for insolvent costs, and in cases where defendants have been acquitted in the manner hereinafter directed." Section 27-2905 reads as follows: "Any officer having a claim against said fund for insolvent costs, or in cases where defendants have been acquitted, if the same accrued in the superior court (or a magistrate's court prior to indictment), shall present to the judge of the superior court an itemized bill of costs claimed; and if the same shall be approved by him, he shall order the same entered on the minutes of the court, and the same shall be a warrant on the county treasurer, to be paid by him out of any fines and forfeitures in the treasury received from the superior court." Slection 27-2915 reads as follows: "All justices of the peace and notaries public who are ex-officio justices of the peace, and constables of the State of Georgia, shall be com!Jensated in criminal cases in the way and manner hereinafter prescribed." Section 27-2916 reads as follows: "Said officers above named shall present their bill of costs to the clerk and judge of the superior court of their county at each term of sa:d superior court, which bill shall be itemized, and with the affidavit of such officer who is seeking payment of his costs, that said itemized statement is correct and that none of said bill of costs has heretofore been paid by the county or the prosecutors or defendants or any other parties. It shall then be the duty of said clerk and judge of the superior court to examine said itemized statement, and certify as to whether they approve or disapprove such bill of costs, and if disapproved in part, that part which does not have the approval of both the judge and the clerk shall not be paid by the county, and if disapproved in whole, none of said bill shall be paid. However, if said bill is approved in part, the part approved by both the judge and the clerk, shall be paid, as hereinafter provided."
Section 27-2917 reads as follows:
"The approval of said bill of costs in whole or in part shall operate as an order to have same entered on the minutes of the superior court, and shall operate further as a warrant in the county treasurer, to be by said county treasurer or other proper county officer or officers in charge of the fiscal affairs of the county in which said justices held office, paid out of the general treasury, to the extent in which said bill is approved."
Section 27-2919 reads as follows:
"The provisions of this law (Sections 27-2915 to 27-2919) shall only apply to criminal cases, wherein, a warrant or warrants have been issued and have resulted in an accusation of an indictment and a conviction has been had on same."
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Sections 27-2915, 27-2917 and 27-2919 are codified from the Acts of 1943, pages 539 to 540, inclusive, and are found in the pocket part of the Annotated Code of Georgia of 1933 on pages 182 and 183.
You will find the laws relating to this subject in the above sections, and l trust will give you the information that you desire.
COURTS-Justices of the Peace (Unofficial) Election of Justice of the Peace to fill vacancy is only for unexpired term.
March 10, 1948 Doctor Thos. E. Fulghum S F C Building
This is to acknowledge receipt of your letter of March 8, 1948, in which you inquire as to terms of office, etc., of justices of the peace.
Replying thereto, wish to state that the Attorney General is not authorized under the law to render official opinions or information upon any subject except when directed by the Governor or the heads of the several State departments. Therefore, the information given herein is strictly personal and unofficial.
I am advised by the Executive department that the original commission issued to Mr. C. P. Floyd was for four years. That the election was held on December 6, 1947, and the commission issued on December 22, 1947, to run from January 1, 1948 to January 1, 1952. After this commission was issued it was found that the same was issued in error and the commission was returned to the Executive department and another commission was issued to run from January 1, 1948 to January 1, 1949.
Under Section 34-2701 of the Annotated Code of Georgia of 1933: .''Justices of the Peace shall ,be elected quadrennially on the first Saturday in December, for terms of four years beginning on January 1 following their election." In an editorial under this section, you will find that the first elections held under this section as amended in 1898 were held in 1900. Therefore, the regular election for justices of the peace will be held on the first Saturday in December 1948. The election held in December 1947, evidently was held to fill an unexpired term, and that being the case, the commission to Mr. Floyd could only be issued for the remainder of the full term, which would expire on January 1, 1949. Section 24-406 of the Annotated Code of Georgia of 1933, reads as follows: "Election to f]l vacancy.-When a vacancy shall occur and there is a justice of the peace in the district where the vacancy occurs, such justice of the peace shall designate some Saturday as the day for holding an election to fill the vacancy. At least 15 days before the day set for the election he shall advertise the same at three of the m.ost public places in the district. On the designated day such justice of the peace with two freeholders, shall hold the election in the same manner that a regular election for justice of the peace is held, and shall duly certify the election to the Governor who shall commission the person elected for the unexpired term." Under this section, the Governor could only commission the person elected for the unexpired term.
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COURTS-Justices of the Peace (Unofficial) Notary who is ex-officio a Justice of the Peace may not adm:n:ster -l_he oath of office to an Ordinary.
April 16, 1948 Honorable C. B. H. Moncrief
This will acknowledge receipt of your letter of April 7, 1948, in which you request my official opinion as to whether or not you, in your official capa.city as Notary Public, E,x-Officio-Justice of Peace, can administer the oath of office to your son who is Ordinary-Elect of your county.
Under the law I am prohibited from giving offic"al opinions to anyone except the Governor and to the heads of the various departments of the :State, and then only upon matters in which the State is involved. However, it is a, pleasure for me to give you such information as I can unofficially, and whatever I may say in reply to your letter is to be considered purely as information and not binding upon anyone in any manner whatsoever.
Section 24-1705 of the 1933 Annotated Code provides: "Wib-o shall qualify ordinary. Approval of bond.-The several judges of the superior courts in their respective circuits shall have power, and it shall be their duty, to qualify the ordinaries of the several counties in their circuits, and approve the official bonds of such ordinaries, and cause such bonds to be returned to the Governor with the dedimus, to be filed in the executive office, and in all cases a certified copy of such bond sllall be sufficient original evidence on which to sue and recover. The provisions of this section shall extend to clerks of the superior courts when serving as ordinary during a vacancy in that office, and such officers must qualify at or before the spring term of the court after their election. (Acts 1871-2, pp. 53, 54.)" In view of the above statute, a Notary Public Ex-Officio-Justice of the Peace would not have the authority to administer the oath of office to an Ordinary-Elect. The Governor's office advises me that their records reveal that the last commission issued to you expired on March 28, 1944. I would suggest that you check the records in the Ordinary's office of your county and ascertain if the proper documents were forwarded to the Governor's office if you were reappointed after the expiration of your term in 1944.
COURTS-Justices of the Peace (Unofficial) A Justice of the Peace has limited authority to administer oaths, as have certain officers of courts.
April 22, 1948
Mr. Paul L. Styles, Regional Director, National Labor Relations Board, Tenth Region
This will acknowledge receipt of your letter of April 16th in which you inquire as to the answers provided by the laws of Georgia as to the following questions:
(1) Who, other than notaries public, are authorized by the laws of Georgia to administer oaths and take acknowledgments?
(2) Whether notaries public are required to aff:x their seal, show the
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date of termination of their commission, or in other fashion demonstrate their
authority to execute the jurat. A question similar to number two arises with
respect to persons other than notaries public who are authorized to so act.
Please be advised that the Attorney General of Georgia is prohibited by
law from rendering official opinions to anyone except the Governor and the
heads of the various State Departments; therefore, this is to be considered as
a strictly personal and unofficial opinion and not binding on any one.
We will answer herewith question (1) and (2) together as to other:a
who under the Georgia law may administer oaths and take acknowledgments
and the fashion under which their authority to execute the jurat is required.
The 1933 Ga. Code, Annotated, Section 24-601 (5) provides as follows,
regarding the duties of a Justice of the Peace:
"5. To administer oaths and take affidavits, unless the power is expressly
restricted to some other officer, and to take the acknowledgment or probate
of any conveyances required to be recorded."
Therefore, from the above it would appear that a Justice of the Peace
has authority under the laws of Georgia to administer oaths and take acknowl-
edgments unless the power is expressly restricted to some other officer.
However, it would appear that a Justice of the Peace may only administer
such oaths in the County of the State in which he is so authorized as a Justice
of the:: Peace. As it has been stated in Hutchins v. State, 8 Ga. App. 409, that
a Justice of the Peace has no authority to attest affidavits beyond the limits
of his County.
,
It is further stated in this regard in Stidham v. Tanner Grocery Company,
47 Ga. App. 114, that where jurat is signed with name of person who is com-
missioned justice of the peace of this State, followed by letters "J. P.", the
presumption is that affidavit was executed in this State at the place where
officer would be authorized to administer oath.
And in Crowe e.t. al. v. Vaughn, 40 Ga. App. 848, the Court said:
"It is not essential to the validity of a writing as an affidavit duly sworn
to that a jurat be attached thereto. It is sufficient that the writing was in
fact duly sworn to by the officer ,before whom it was."
From the above it would appear that as long as the officer is a commissioned Justice of the Peace of the County and State wherein the oath is administered, the form under which he would show his authority to execute the jurat, or whether or not the jurat was attached, would be of little consequence and without special requirement as to form.
There are further provisions made for certain officers of Courts, etc:, to administer oaths, necessary in the exercise of their powers and duties, or which may be specially granted them by law, or where the authority is not confined to some other officer. I refer you in this general connection ori administration of oaths to: 1933 Georgia Code, Annotated, Sections 24-10.;1, (5); 24-2616 (6); 24-2720 (1) and 24-2819.
Of course, all officers administering oaths should indicate their authority to so execute by reciting their title or commission, and this should appea.r' after the signing of their name to the document in question.
I refer you to Title 71, 1933 Georgia, Code, Annotated, 1947 Pocket Part as to Notaries Public. Section 71-106 provides that "notarial acts may ,be exercised in any county in the State of Georgia".
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As to your question (2) relative to notaries public affixing their seal, etc., Section 71-107 of the above referred to Code states:
"For the authentication of their notarial acts each notary must provide a seal of office, which shall have for its impression his name; the words, 'Notary Public'; the name of the State and the county of his residence. A scrawl shall not be a sufficient notarial seal. No seal is required to his attestation of deeds. He must keep a fair register of all his notarial acts signed by him, together with the date of each transaction.
Therefore, as above stated, Notaries Public are required to have and affix a seal to all documents executed by them and the above quoted Code Section sets forth the proper form required.
COURTS-Justices of the Peace (Unofficial) 1. In case of arrest for traffic violation by Highway Patrol or County policemen, the Justice of the Peace is entitled only to fee for issuing warrant. 2. A County policeman on salary may not receive fees for arrest -in traffic violation cases. 3. A State Highway Patrolman is not entitled to fee for making arrest in a traffic violation case.
June 22, 1948 Honorable J. R. Terrell, Jr., Attorney at Law
In reply to the first question set out in paragraph 2 of your letter of June 16th, which is as follows:
"Where a member of the State Highway Patrol or County policeman makes an arrest and delivers defendant to sheriff or jailor and takes out warrant before Justice of the Peace and where the accused subject waives commitment trial and makes bond and then enters a plea of guilty or is found guilty by the trial court, what fees are payable to the Justice of the Peace?", I am of the opinion that, inasmuch as you refer to State Highway Patrolmen and County policemen, your question relates to traffic violations under Title 92A of the 1933 Code, Ann.
\Section 92A-505 provides as follows: "Costs.-The following schedule of costs shall apply in any case disposed of under this Chapter: 'Arresting officer, the same costs as now allowed in superior court. Warrant, if issued ---------------------------------------------------------------------------$1.2 5 Entering case on docket, receiving plea or holding trial and impo-
ing sentence, for entire service ----------------------------------------------$3.00 In case a defendant demands a trial by jury and is bound over to another court the costs shall await the final disposition of the case."
Sections 92A-501, 92A-502, 92A-503, 92A-504, 92A-506, 92A-5io and 92A-511, relate to the jurisdiction of courts over violations of traffic laws, :at+d nowhere is there a provision that the Justice courts shall have jurisdiction over traffic violations. It would appear that the only power and authority of a Justice of the Peace, where a traffic violation is involved, is to issue. a warrant,
50
if requested by the arresting officer. He would, therefore, be entitled to a fee of $1.25, as set out in Section 92A-505, above quoted.
In such a case, I am of the further opinion that a Constable who does not make the arrest would not be entitled to any fees.
In answer to the second question, set out in Paragraph 3 of your letter, which is as follows:
"In a situation similar to this where the county policeman makes the arrest, is the county policeman entitled to any fees?'", I have carefully considered the case you cite, of Cloud vs. DeKalb County, 70 Ga. App. 777. This case specifically holds, in headnote (1), that
"The mere fact that a county policem,an receives a salary does not preclude him from receiving his part of the fees provided by law for the officers who make the arrests and furnish the evidence for the confiscation of vehicles engaged in the illegal disposition of liquor."
The question arises as to whether or not the Court of Appeals has placed a specific limitation upon fees of County policemen who are on a salary to specific cases involving "confiscation of vehicles". At page 780 of the opinion, the court said:
"There is no provision of law which has come to our knowledge prohibiting an officer who receives a salary from also receiving fees, and there is no such law applicable to those involved here. This being true, there is no reason why the Legislature could not provide for fees, or commissions, or other sums, in addition to the officer's salary."
This statement would lead one to believe that the decision was not limited to specific "confiscation cases", but that a County policeman, unless specifically prohibited by law from receiving fees in addition to his salary would be entitled to receive the usual fees of the court officers in the making of arrests for violation of the criminal laws of this State. I do not believe that the Cloud case, supra, would have application to the violation of traffic laws where the, County policeman is on a salary.
Section 92A-507 provides, in part: "No officer receiving a salary shall receive any fees for arresting or attending court in any cases arising under this Chapter, but the usual fee shall be assessed, and if the arresting officer is not entitled to the costs, the same shall go to the county or city to which the fine is paid." In answer to the third ques,tion set out in paragraph 4 of your letter, which is as follows: "Is a member of the State Highway Patrol who makes an arrest entitled to any fees in such a case? I am of the opinion that such patrolman is not entitled to fees."
I, too, am of the opinion that a State Highway Patrolman is not entitled to fees for the performance of his duties in criminal cases of whatever type they may be. Code Section 92A~246 provides:
"No emoluments or costs.-No member of the Uniform Division of the Departm1ent of Public Safety shall receive any costs, emoluments or other compensation other than his salary, except a legal reward as otherwise stated in this Chapter, but all fines and costs shall be paid into the treasury of the tribunal having jurisdiction of such offense and distributed according to law."
You understand, of course, that I am not in a position to render an official
51
opinion, except upon request of the Governor andjor the heads of the respective State Departments, and the subject then must deal with IState matters. There~ fore, the opinions expressed in this letter are unofficial, and are not binding upon anyone, and are rendered for the sole purpose of being of assistance) to you.
COURTS-Justices of the Peace (Unofficial) Lists fees and Code sections applicable in Justice of the Peace Courts.
October 15, 1948 Honorable H. W. Whitworth Justice of the Peace
This will acknowledge your letter of October 4th in which you request a code or some information that would be helpful in Justice of the Peace Courts.
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone other than the Governor of the State or the heads of the various departments of State upon matters pertaining to the interests of the State. However, it is a pleasure for me to refer you to the provisions of law applicable to your question as a matter of information.
Section 24-1601 of the Annotated Code of Georgia reads as follows: ''Enumeration of fees.-The following shall be the fees for justice of the peace of this :State and it shall be lawful for said justices of the peace to charge and collect the same: "Each original summons --------------------------------------------------------------$ .50 Each copy of summons ------------------------------------------------------------ .50 ,Filing papers in any cause.---------------------------------------------------------------- .10 Seal -------------------.------------------------------------------------------------------------------- .1 0 Affidavit and bond to obtain attachment and issuing same __________ 1.70 Entering judgment in each case ----------------------------------------------------- .50 Trial of each case when same is litigated -------------------------------------- .50 Docketing each case ------------------------------------------------------------------------ .3 5 Each witness sworn -------------------------------------------------------------------- .2 5 Issuing each execution ----------------------------------------+-------------------------- 50 Affidavit to obtain possessory warrant, making out and issuing
same ----------------------------------------------------------------------------------------- 1.2 5 Trying possessory warrant -------------------------------------------------------------- 2. 00 M!aking out interrogatories and certifying same --------------------------- 1.25 . Making out recognizances and returning same to court ________________ .50 Each Subpoena for witness ----------C------------------------------------------------- .15 Issuing each distress warrant ---------------------------------------------------------- 2. 00 Each affidavit when no case is pending --------------------------------+--- .50 Answering every writ of certiorari to superior court -------------------- 3.00 Presiding at trial of forcible entry and detainer ------------------------- 2.00 Presiding at trial of right of way -------------------------------------------------- 2.00 Issuing rules to establish lost papers ---------------------------------------------- 1.00 Trying the same ---------------------------------------------------------------------------- .50 Presiding at trial of nuisance ----------------------------------------------------- 1.00
Witnessing any paper --------------------~-------------------------------------- .50
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Affidavit and bond to obtain garnishment ---------------------------------- 1.50 Issuing summons of garnishment -------------------------------------------------- .50 Each additional copy of garnishment ------------------------------------------- .25 Settling case before judgment ------------------------------------------------------- .50 Claim affidavit and bond ----------------------------------------------------------------- .50
Trying same ________________________________________,_____________________________________ .50
Drawing bonds in civil or criminal cases ------------------------------------- 2.00 Certifying transcript ,---------------------------------------------------------------------- 1.00 Entering appeal to superior court -------------------------------------------------- 1.00 Issuing search warrant -------------------------------------------------------------------- 2.00 Taking testimony in criminal case ----------------------------------------------- 1.25 !lssuing order to sell perishable property -------------------------------------- 1.00 Each lien foreclosure and docketing same -------------------------------------- 2.00 Entering appeal in justice's court --------------------------------------------------- 1.00 Drawing jury and making out list ------------------------------------------------ 1.00 Each order issued by justice ----------------------------------------------------------- 1.00 Each case tried by jury ------------------------------------------------------------------ .50 Issuing commission to take interrogatories ------------------------------------ 3.00 Backing fieri facias ------------------------------------------------------------------------- .50 Rule nisi against officer ------------------------------------:-------------------------------- .35
Trying same ------------------------------------------------------.------------------------ .35 ,Judgment on same ----------------------------------------------------------------- .35 Attachment for contempt against officer of court ------------------------ .50 Issuing warrant to dispossess, or against intruders ________________________ 1.75
Bail trover affidavit, summons and trial --------------------------------------- 1.25 :Each criminal warrant issued ---------------------------------------------------------- 1.25 Taking examin'ation of person charged with criminal offense ________ 1.25 Examining each witness in criminal cases -------------------------------------- .30 Making out commitm ent ----------------------------------------------------------------- . 35 The Editorial Note, contained in the Cumulative Pocket Part of the Annotated Code, reads as follows: "24-1601. Enumeration of fees.-Acts 1939, p. 339, provides the manner in which justices of the peace and notaries public ex-officio j"qstices of the peace shall be compensated in criminal cases in counties having a population of not less than 9,010 and not more than 9,020, according to the United States census of 1930 or any future census of the United States."
F'or your further information, it is suggested that you obtain a copy of the code of Georgia Annotated, and familiarize yourself with the contents of 'Sections as listed below, all of which are' applicable to Justices of the Peace.
Sec. 24-401 through and including 24-408 Sec. 24-501 through and including 24-503 Sec. 24-601 through and including 24-606 Sec. 24-701 through and including 24-704 'Sec. 24-801 through and including 24-821 :sec. 24-901 through and including 24-908 Sec. 24-1001 through and including 24-1016 Sec. 24-1101 through and including 24-1502
I,f. you do not have a copy Of the Code furnished you, it is suggested that you rH~r to Code Section 89-9905.
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COURTS-Justice& of the Peace (Unofficial) No statutory provision is m.ade for hour of holding Justice of the Peace Courts, but any change should be preceded by proper notice. November 29, 1948
Honorable W. L. Parris I am pleased to acknowledge your letter in which you ask the following
question: "Does a Justice of the Peace have authority to .change the hour of J. P.
court? 'For example, where J. P. court is usually held at 10:00 A. M. on each 2nd Saturday, can this be legally held, or changed to 2:00 P. M. ?'"
Under the law I am prohibited from giving opinions to anyone except the Governor and the heads of the various State Departments, and then only on matters in which the interest of the State is involved. Notwithstanding these limitations, I am always glad to be of assistance to the officials in our counties in helping to solve the various pro,blems confronting them. However, anything that I may say in reply to your letter is to be considered only as information, and is not binding upon anyone in any manner whatsoever.
Section 24-1401 of the Code provides: ''All cases before a justice of the peace stand for trial at the time and place designated in the summons, and shall be then and there tried, unless continued according to law." Section 24-901 of the Code provides: "Justices of the peace shall hold their respective courts monthly at fixed times and places; and when from any reason the business of such court cannot be disposed of in one day, such courts may hold from day to day or adjourn, to such time as may be agreed upon by the parties, with the consent of the court, until the business is disposed of." As to the number of times and conditions upon which a change of the! place of holding a civil justice court may be made, is found in Sections 24-902; 24-904; 24-906; 24-907. A Justice of the Pe'ace is bound, under Code Section 24-901, to hold his civil court monthly at fixed times and places; any change in the time and place to be made according to the provisions of the above quoted code sections. While there appears to be no specific statutory provision dealing with the hour of the day on which the civil court is to be opened, it is reasonable to conclude that once a specific hour has been fixed as to the time of holding a civil justice court, it should not be changed unless proper public notice has been conspicuously posted in the district, under the same provision above stated for the changing of the date, and all summonses and other process papers have the new hour stated therein.
COURTS-Juven.ile (Unofficial) 'Sets out Code provisions regarding establishment of juvenile courts, their jurisdiction and m'achinery and defines persons within the statute.
Mr. Thomas J. Bain, S. J.
October 5, 1948
'
l
:This will acknowledge receipt of your letter of September 27,. in which
.you ask the following questions:
1. Is a juvenile court created by statute in your state?
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2. Is the juvenile court an independent court or the branch of another court? If the latter, of what court is it a branch?
3. W:hat is the maximum age of a juvenile? 4. Is the jurisdiction of a juvenile court in any instance concurrent? 5. Are there referees in the courts? 6. Have all large cities (over 20,000) juvenile courts?
Under the Constitution and laws of this State the Attorney General is prohibited from rendering official opinions and advice to anyone except the Governor and heads of the various State departments. However, I am glad to give you the following information, which is not binding upon anyone, and to give you the following Code Sections which I believe cover your questions.
Questions 1, 2, and 6 are answered in Georgia Code Annotated, Sections 24-2401 and 24-2441, which are quoted as follows:
24-2401. "In counties having a population of 60,000 or more, juvenile courts are created and established with original and exclusive jurisdiction of all cases coming within the terms and provisions of this Chapter. This Chapter shall be construed liberally and as remedial in character; and the powers hereby conferred are intended to be general to effect the beneficial purpose herein set forth."
24-2441. "In all counties having a population of less than 60,000, the judge of the superior court may designate 'an existing court to act and be known as the juvenile court of said county. This shall involve no additional expense (except as may be authorized by the board of county commissioners or other authority controlling the fiscal affairs of such county), shall create no new court or judge, but shall merely clothe an existing tribunal with additional powers, unless the court thus designated is one of a grade or class required by Paragraph I, Section IX of Article VI (Section 2-3701) of the Constitution of this State to be uniform as to jurisdiction, powers, proceedings, and practice, in which event the designation of such court shall be construed as the designation of the judge thereof to preside over a juvenile court for such county, which he shall thereupon establish and conduct as separate and distinct from any other court to which he may have been elected or appointed. In any counties having a population of less than 60,000, upon the recommendation of twq successive grand juries, the judge of the superior court shall appoint a properly qualified person, of high moral character and clean life, selected for his special fitness for work with delinquent and neglected children, to be the judge of the juvenile court, whereupon it shall be considered that a special juvenile court has been established in said county. The term of the judge so appointed under this section shall be for three years, and the salary may be fixed by the appointing judge with the approval of the county commissioners. The powers, authority, jurisdiction and procedure of the same shall be those of the courts already established under the law hereby amended, e:lQcept as hereinafter provided. The judge of the juvenile court, under this section, shall, with the concurrence of the judge of the superior court, appoint one or more probation officers, male or female, who shall be paid in an amount named by the court and approved by the county commissioners. The judge of the juvenile court, under this section, shall make arrangements for the proper detention of children under this Chapter in surroundings, s.eparate and removed from any jail, lock-up or other place of imprisonment, where adults are im-
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prisoned, except on order of the judge or probation officer. It is the purpose of this amendment to make Statewide the benefits of the juvenile court, and the provisions hereof shall be construed beneficially towards that end."
Questions 3 and 4 are answered by Code Section 24-2402 which is as follows:
"This Chapter shall apply to every child under 16 years of age. "(a) Who violates any penal law or any :ntunicipal ordinance, or who commits any act or offense for which he could .be prosecuted in a method partaking of the nature of a criminal action or proceeding, or ''(b) Who engages in any occupation, calling, or exhibition, or is found in any place for permitting which an adult may be punished by law, or who so deports himself, or is in such condition or surroundings or under such improper or insufficient guardianship or control as to endanger the morals, health, or general welfare of such child, or "(c) Who comes within the provision of any law for the education, care and pTotection of children, or "(d) Whose custody is the subject of controversy of any suit: Provided, however, that jurisdiction in such cases shall be vested in courts of record where the law now gives courts of record exclusive jurisdiction, and that said courts of record shall have concurrent jurisdicti1>n in all other cases arising under this division of this section. The judge of 'any court, except as above provided, in which there is pending any suit in which there is involved the question of the custody of any child, shall refer and transfer by proper order said question of custody to the juvenile court to be heard and determined by it, (e) Whenever any such juvenile court shall have acquired jurisdiction of any child under 16 years of age, such jurisdiction shall continue so long as, in the judgment of the court, it may be necessary to retain jurisdiction for the correction, or education of such child, but such jurisdiction shall terminate when such child shall attain the age of 21 years." Question No. 5, is answered by Code Section 24-2429, which is as follows: "The court may appoint one or more persons as probation officers to act as referee in the first instance to hear any cases coming within the provisions of this Chapter and make report thereof together with said referee's conclusions and recommendations. If no exception be taken to said report and no review be asked thereof, such report and recommendations, if confirmed, shall become the judgment of said court. A review of the conclusions and recommendations of said referee may be had by any child, the parent, guardian or custodian of any child, by filing a petition for review thereof with said referee at any time within three days after the entry of the finding of said referes.''
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COURTS-Ordinaries (Unofficial) Limitation of costs in Code Section 113-1031 applies only to fees authorized by that section and not to cost of publication of notice.
January 20, 1948 Ron. Frank E. Gabriels Ordinary
Reference is made to your inquiry as to whether or not the proviso in Code 'Section 113-1031, Cumulative Pocket Part, Georgia Code of 1933, Annotated, wherein the maximum amourit of costs chargeable for the purposes with which the section deals would be construable as including the publication of notice as required by Code Section 113-1026, Cumulative Pocket Part, Georgia Code of 1933, Annotated.
Please be advised that the Attorney General is precluded by law from rendering official opinions to anyone other than the Governor and the heads of the several departments of the state government. In view of this fact, the information .contained herein is of necessity unofficial matter and is binding upon no one, nor can it be used in any manner as authoritative on the Georgia law.
It is my unofficial opinion that the Code section limiting the cost to $5.00 applies only to the fees authorized by the Code section and that the fees mentioned do not include a charge for publication of notice. Therefore, the cost of publication would be upon the applicant and would not be includab'e in the $5.00 limitation upon cost.
COURTS-Ordinaries (Unofficial) Sets out fees of Ordinary in cases arising under Public Safety Laws.
March 15, 1948 Honorable Arthur Smith Ordinary, W'ebster County
The Honorable T. Grady Head has forwarded to me your letter of March 5 in which you request information as to the fees to which the Ordinary 1s entitled in 'State Highway cases. I take it that you refer to cases arising under the Public Safety laws.
As you know, I am prohibited by law from rendering official opinions to anyone except the Governor and heads of the various State departments, there.fore, the following remarks are entirely personal, unofficial, and not binding on anyone.
Code Section 92-A-505 states the following: "Costs.-The following schedule of costs shall apply in any case disposed of under this Chapter: Arresting officer, the same costs as now allowed in superior court. Warrant, if issued ---------------------------------------------------------------------------$1.2 5 Entering case on docket, receiving plea or holding trial and imposing sentence, for entire service -------------------------------------------------- 3.00 In case a defendant demands a trial by jury and is bound over to another court the costs shall await the final dispos.ition of the case. (Acts 1937-38, Ex. Sess., pp. 558, 560.)"
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It is, therefore, my opinion that the Ordinary is entitled to a fee of $3.00 in cases brought before -the Court of Ordinary by the State Highway Patrol.
'See also Opinions of Ellis G. Arnall, Attorney General, 1941-1943, page 175, for an opinion stating that Ordinaries may not share in the forfeiture of appearance bonds. COURTS-Ordinaries (UnoHicial)
Ordinary may try cases for violations of Public Safety Acts and may impose either a fine or sentence, or both, as provided for violations of the Act.
April 7, 1948
Honorable G. A. G:arrett, Ordinary
I have received your letter requesting my unofficial opinion as to the
minimum and m:aximum fines that an ordinary has a right to assess against
parties found guilty of violating the provisions of the Act of 1937 creating
the Department of Public Safety, as amended; also whether he has a right
to assess a fine and a work camp sentence or both.
Code Sections 92A-501 and 92A-502 of the Annotated Code of Georgia
of 1933 provide as follows:
,
92A-501 "The jurisdiction of courts of ordinary, of municipal courts a:1~d
police courts of the incorporated towns and cities of this :State, are hereby
enlarged and extended so that said courts, acting by and through the judge
or presiding officer thereof, shall have the right and power to conduct trials,
receive pleas of quilty and imp,ose sentence upon defendants violating the
penal provisions of this Title, and upon defendants violating any and all other
criminal laws of this State relating to traffic upon the public roads, streets
and highways of this State, where the penalty for the offense does not exceed,
that of the grade of misdemeanor, in the manner required by law."
92A-502 "The court of ordinary shall have jurisdiction to issue warrants,
try cases, and impose sentence thereon in all misdemeanor cases arising under
this Title, and other traffic laws of the State, in all counties of this State in
which there is no city or county court, provided the defendant waives a jury
trial. Like jurisdiction is also conferred upon the judges of the police courtg
in incorporated cities and municipal court judges, for offenses arising within
their respective jurisdiction."
From the above, it is obvious that you would have the right to try cases
in violation of the Public Safety Acts.
Your attention is invited to Code Sections 92A-9901 through 92-A.-9919,
wherein certain specific fines and sentences are enumerated for those found
guilty of violating the provisions of said Act.
Where no specific provision is provided other than that the guilty party
may be punished as for a misdemeanor, your attention is invited to Code
Section 27-2506, which outlines the minimum and maximum fine and work
sentences allowed for those guilty of a misdemeanor.
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COURTS-Ordinaries (Unofficial) Jurisdiction and Powers of Ordinary.
September 27, 1948
Honorable Bethel Salter Attorney at Law
This will acknowledge your letter of September 18, 1948, in which you ask the following questions:
"Does the Ordinary have authority to try cases arising under the Compulsory School Attendance law?
"Can the Ordinary empanel a jury for Civil cases in his court? ''Can the Ordinary ever empanel a jury for Civil cases for the Superior Court?" As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the heads of the various State Departments. However; it is a pleasure for me to refer you to the provisions of law applicable to your questions as a matter of information. With reference to your first question, Code Section 2-4102 of the Code of Georgia of 1933, 1945 Supplement, is quoted: "The courts of ordinary shall have such powers in relation to roads, bridges, ferries, public buildings, paupers, county officers, county funds, county taxes and other county m,atters as may be conferred on them by law. "The court of ordinary shall have jurisdiction to issue warrants, try cases, and impose sentences thereon in all misdemeanor cases arising under the Act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws, and in all cases arising under. the Compulsory School Attendance law in all counties of this State in which there is no city or county court, provided the defendant waives a jury trial. Like jurisdiction is also conferred upon the judges of the police courts of incorporated cities and municipal court judges for offense arising under the Act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws of the State within their respective jurisdiction." With reference to your second and third questions, your attention is invited to that part of the Editorial Notes beneath Code Section 59-809; Code Section 24-1901, particularly Paragraph 12 of same; and, Code Section 23-701. These Sections are quoted below. Code Section 59-809, Editorial Notes, "County Courts. Sections 756, 757, and 772 P.C. (1895), relating to the manner of selecting jurors, to impaneling the jury, and to the pay of jurors, respectively, in county courts, were not codified in the Code of 1910, but were included in Park's Ann. Code, as sections 790 (w), 790 (x), and 790 (mm.) P.C., respectively. These sections, as well as others relating to county courts, have been omitted from this Code. See note immediately preceding Chapter 24-22." Code Section 24-1901: "Courts of ordinary have authority to exercise original exclusive, and general jurisdiction of the following subject matters: (Act 1799, Cobb, 281; Act 1810, Cobb, 283; Acts 1851-2, p. 91; 1855-6, p. 147.) "1. Probate of wills. "2. The granting of letters testamentary, and of administration, and the repeal or revocation of the same.
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"3. All controversies in relation to the right of executorship or administration.
"4. The sale and disposition of the property belonging to, and the distribution of, deceased petsons' estates.
"5. The appointment and removal of guardians of minors and persons of unsound mind.
"6. All controversies as to the right of guardianship. "7. The auditing and passing returns of all executors, administrators, and guardians. "8. The discharge of former, and the requiring of new surety, from administrators and guardians. "9. The issuing of commissions of lunacy in conformity to law. "10. All such other matters and things as appertain or relate to estates of deceased persons, and to idiots, lunatics, and insane persons. "11. All such matters a!; may be conferred on them by the Constitution and laws. "12. Concurrent jurisdiction with the judge of the county court in those, counties where there are such courts, in the binding out of orphans and apprentices, and all controversies between master and apprentices." Code Section 23-701: "The ordinary, when sitting for county purposes, has original and exclusive jurisdiction over the following subject-matters, to wit: "1. In directing and controlling all the property of the county as he may deem expedient according to law. "2. In levying a general tax for general county purposes and a special tax for particular county purposes. "3. In establishing, altering, or abolishing all roads, bridges, and ferries in conformity to law. "4. In establishing and changing election precincts and militia districts. "5. In supplying, by appointment, all vacancies in county offices, and in ordering elections to fill them. "6. In examining, settling, and allowing all claims against the county. "7. In examining and auditing the accounts of all officers having the care, management, keeping, collection, or disbursem*nt of money belonging to the county or appropriated for its use and benefit, and bringing them to a settlement. "8. In making such rules and regulations for the support of the poor of the county, for county police and patrol, for the promotion of health and quarantine, as are authorized by law and not inconsistent therewith. "9. In regulating peddling and fixing the cost of licenses therefor."
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COURTS-01'dinaries; Sheriffs; Clerks o,f Superior Court (Unofficial) 1. Bonds of Ordinaries are approved by Superior Court Judges. 2. Bonds of Sheriffs are approved by the Ordinary. 3. Bonds of Clerks of Superior Court are approved by Ordinary.
December 22, 1948' Honorable Bethel Salter
I am pleased to acknowledge your letter of December 20, 1948 with attached bonds covering yourself as Ordinary and those of the Sheriff and Clerk of the Superior Court, which you requested that I approve.
The statutory procedure for the approval of bonds of Ordinaries is provided for in Section 24-1705 of the 1933 Annotated Code as follows:
"The several judges of the superior courts in their respective circuits shall have power, and it shall be their duty, to qualify the ordinaries of the several counties in their circuits, and approve the official bonds of such ordinaries, and cause such bonds to be returned to the Governor with the dedimus, to be filed in the executive office, ...."
The statutory procedure for the approval of the bonds of Sheriffs is provided for in Sections 24-2806 and 24-2807 of the 1933 Annotated Code as follows:
"24-2806. Such bonds shall be approved by the ordinary, and then de-
posited in the office of the clerk of the superior court until the first session of
that court thereafter, when the presiding judge shall examine said bonds, and, if taken in conformity to the law and the sureties are sufficient, so declare by <>rder, and have them spread upon the minutes of the court; . . . ."
"24-2807. When said bonds are thus approved by the ordinary, and before deposited in the clerk's office, they shall be recorded in the office of the ordinary, and, after being passed upon by the judge of the superior court, shall be returned to the office of said ordinary and by him filed; ...."
The statutory procedure for the approval of the bond of the Clerk of the Superior Court is provided for in Sections 89-405 and 89-406 of the 1933 Annotated Code as follows:
"89-405. The official bonds of the clerk of the superior courts ...., shall be approved by the ordinary and filed in his office, and by him recorded....."
"89-406. Such ordinary must sign a certificate to the Governor, stating that the clerks of the superior courts, the sheriffs, .... have taken the oath and given the bonds sent from the Executive Department, together with a statement of the dates, amounts, and names of the sureties of each, and that they have delivered to them their commissions; which shall be attested by the clerk of said court, if any, and immediately transmitted to the Governor."
I am returning to you herewith your bond and those of the Sheriff and the Clerk of the Superior Court since I do not have jurisdiction in the matter.
Commissions are issued by the Executive Department and I would suggest that you request that they forward the dedimus, oath, commission and bond forms, as is usual in such cases.
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COURTS-Reporters (Unofficial) Judges may order payment of reporter's fee where one accused of felony is convicted of a misdemeanor.
August 9, 1948
Mrs. Minnie Lee Newton I arrt pleased to acknowledge your letter of July 30th, in which you request
advice concerning the law setting up payment for court reporters where defendants are tried for a felony and convicted for a misdemeanor.
Under the Constitution and laws of this State, I cannot give you an official ruling on this question, since I can only render binding opinions to the Governor and heads of the various departments of State upon matters affecting the operation of the State government. I am glad however, to reply to your letter as a matter of information with the understanding that anything said herein is only an expression of my personal views on the matter.
Section 24-3104 of the Code provides: "The compensation of the reporter or stenographic reporter, for taking down testimony in the trial of such criminal cases as are required by law to be recorded shall be $15 per day, which sum shall be paid by the county treasurer, or other officer having charge of the county funds of the county wherein such criminal cases shall be tried, on the certificate and order of the judge as to the number of days he has been employed, but not exceeding $2,500 shall be paid in any one year for work done in that year out of the funds of any one county. In cases of conviction, the costs of reporting, as provided in this section, shall be entered upon against the defendant, on which judgment the clerk of the superior court shall issue execution, and the money arising therefrom shall be deposited in the treasury of the county where such conviction was had, to be held as other county funds are held. Such reporter or stenographer shall, for reports of evidence and other proceedings by him furnished, be paid by the party requesting the same at a rate not to exceed 10 cents for each 100 words." It should be noted that the above law has been changed in many instances by the legislature in reference to counties coming within certain population classifications. However, from your letter I presume that your county does not fall within one of these categories. Section 27-2401 of the Code provides: "On the trial of all felonies the presiding judge shall have the testimony taken down, and, when directed by the judge, the court reporter shall exactly and truly record, or take stenographic notes of, the testimony and proceedings in the case, except the argument of counsel. In the event of the jury returning a verdict of guilty, the testimony shall be entered on the minutes of the court or in a book to be kept for that purpose. In the event that a mistrial results from any cause in the trial of a defendant charged with the commission of a felony, the presiding judge may, in his discretion, either with or without any application of the defendant or State's counsel, direct that a brief or transcript of the testimony had in the case be duly filed by the court reporter in the office of the clerk of the superior court wherein such mistrial occurred. If said brief or transcript shall be ordered it shall be the duty of the judge to provide in said order n:quiring such brief or transcript for the compensation of said reporter, and that said transcript or transcripts shall be paid for on the order of said judge, as now provided by law for transcripts in cases wherein
62
the law requires the testimony to be transcribed, at a rate not to exceed that provided by existing statutes in cases wherein a sentence is made in felony cases: Provided, however, nothing herein contained shall be deemed or construed to in any wise impeach or avoid the operation of Section 24-3104."
It would seem from the above provisions of law that the judge could, in his discretion, authorize the payment for the court reporter in pursuance of the above statute even though the defendant, while being charged and tried for a felony, was actually convicted of a misdemeanor.
As stated above, this is not an official opinion and is therefore not binding upon you or anyone else, but I trust that the Code Sections set forth herein may give you the desired information.
It is always my desire to render any service or information that I can to our local county officials.
COURTS-Reporters (Unofficial) The principle of uniform application of general laws may be modified in the case of fees of court reporters on the basis of a population classification.
November 29, 1948 Hon. James V. Davis, Representative
I am pleased to acknowledge your letter of November 24th, in which you .ask whether or not the official court stenographer for the Albany Judicial Circuit could be placed on a salary basis in lieu of the present schedule of fees provided for by general law. You also point out that in the Acts of 1945, page 1128, there appears legislation placing the court reporter for the Middle ,Judicial Circuit on a salary basis. You desire my opinion as to the constitutionality of such an Act.
It has been the long standing custom and practice of this office for the Attorney General to refrain from passing upon the constitutionality of an act except at the specific request of the Governor. Only the Supreme Court of this State can finally determine the constitutionality of acts passed by the General Assembly, and it would only tend to confuse the issue if the Attorney General should make it a practice of giving his official opinion on the legality of such measures. It is presumed that all laws duly enacted by the Legislature are valid until they are declared otherwise by the courts.
As a matter of information, I call your attention to Section 2-401 of the State Constitution, which provides in part as follows:
"Laws of a general nature shall have uniform operation throughout the' State, and no special law shall be enacted in any case for which provision has been made by an existing general law. . . . ."
As pointed out in your letter, Code Sections 24-3103 and 24-3104 set forth a schedule of fees to be paid court reporters for their services. The courts have held on several occasions however, that acts based upon a proper population classification are legal. I am sure that you are familiar with this line of authority.
I regret that I am unable to give you a specific answer to the question presented, but I will be glad to discuss this matter with you further when you are in Atlanta.
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Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. You will therefore understand that this letter is not an official opinion, but is simply being given as a matter of information.
COURTS-Ruies of Construction (Unofficial) The word "may" when used in statute concerning public interest or affecting rights of third persons has value of "must" or "shall".
December 6, 1948 Honorable H. P. Sellers
This will acknowledge receipt of your letter of recent date in regard to the construction of the word "may" which appears in the 1947 Acts, page 1543.
The courts have many times construed the word "may" and the word "shall" which from time to time have appeared in the different Acts of the Georgia Legislature. The particular question which you ask is a question to be decided by your County Attorney. However, I am glad to furnish you certain court decisions which have discussed .and construed these particular words.
This question was discussed in the case of Birdsong & Sledge vs. Joa\b Brooks, 7 Ga. 88, 89. In this case the court said:
"The true rule for the construction of the word may in a Statute is, :,tha:t: when such Statute concerns the public interest, or affects the rights of third persons, then the word may, shall be construed to mean must or shall." (Emphasis supplied)
The following is a list of cases in which the words "may" and "shall" have been construed:
7 Ga. 167; 33 Ga. 419; 34 Ga. 10; 38 Ga. 451; 78 Ga. 449; 130 Ga. 394; 5 Ga. App. 458; 134 Ga. 758'; and there are many other cases in which the courts have construed the words "may" and "shall."
Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. However, it is a pleasure for me to refer you to the provisions of law applicable to your question as a matter of information.
COURTS-Sheriffs (Unofficial) In case of issuance of nulla bona by sheriffs, he is entitled to receive fee therefor only in event it is collected from defendant.
October 5, 1948 Honorable Holmes J. Hawkins Sheriff of Jones County
This will acknowledge receipt of your letter of September 27, requesting an opinion on the following:
"Where the Sheriff of a County issues a Null Bona against a Tax Execution what fee is the Sheriff entitled to. Also if you have Tax Executions for
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several years against the same person is the Sheriff entitled to the Nulla Bona fee for each tax execution."
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and heads of tilt! various State departments. However, I am glad to give you the following information, which is not binding upon anyone, and to quote the Code Sections which I believe cover your questions.
Georgia Code Annotated, Sections 92-8001, 92-8002, and 92-8003, are as follows:
92-8001. "Whenever the sheriff or other officer of any county shall collect any tax execution over $100, he shall be entitled to $1 costs; and for collecting any tax execution of $100 or under, 50 cents for costs."
92-8002. "Tax collectors shall be allowed a fee of 50 cents for issuing tax executions; but no tax collector, sheriff, or constable shall receive costs on said executions, unless the same shall be collected from the defendant."
92-8003. "If a tax execution for less than $100 is levied by a sheriff, his fee for said levy shall be that allowed constables."
COURTS-Sheriffs (Unofficial) Sheriffs need not report to Comptroller General fees collected by them.
November 12, 1948 Hon. Mitchell E. Owens, Sheriff Glynn County
I am pleased to acknowledge your letter of November 6th, in which you ask whether or not the Attorney General has ruled that it is unnecessary for the sheriffs of this State to report fees collected by them to the Comptroller General.
Under date of October 20, 1947, an official opinion was rendered by me to the Governor in which it was held that the Act of 1912, (Ga. Laws 1912, pp. 109-111) as amended by an Act approved March 24, 1933, (Ga. Laws 1933, pp. 97-98) as codified in the Code of Georgia as Section 89-703 to 89-706 inclusive, has been repealed by im;plication, and that it is no longer necessary for officers on a fee basis to file itemized statements of their collections with the ComptrollerGeneral.
COURTS-Superior (UnoHicial) Sets out requirements and procedure for appointments as Judge Emeritus.
March 3, 1948 Hon. W. R. Smith Judge, Alapaha Judicial Circuit
I have your letter of February 27th in which you request my opmwn on several questions relative to the appointment of Judges of the Superior Court, Emeritus. A good bit of information on the questions you have asked is contained in the rules adopted by the Trustees of the Retirement Fund on August 26, 1946, a copy of which I enclose herewith.
As to whether or not you will be eligible for appointment as Judge
65
Emeritus between August 19th and December 31st of this year, it is my personal opinion that your appointment would have to be made effective as of the date on which you complete twenty years on the bench. (See Rule Number 2 of the enclosure) .
As you point out, Section 12 of the original Act (Ga. Laws 1945, p. 362, 365) states as follows:
"In computing twenty years continuous service, the entire year in which a Judge becomes seventy years of age shall be computed as a part of said twenty years."
This section to my mind is extremely ambiguous, but I believe that Rule 2 requires that the twenty years be completed before appointment, regardless of the date of the birthday.
As to whether or not your appointment may take place after the close of your present term, Rule 5 requires that the application for appointment shall be made on or before the expiration of the term to which the Judge has been elected. It seems to me that it would be financially beneficial to you to have your appointment become effective immediately upon the completion of your term, and I suggest that you so request in your petition for appointment.
As to the proceedings for appointment as Judge Em.eritus, Rule 4 states that a petition for appointment should be directed to the Governor setting forth the qualifications of the petitioner, with documentary evidence in support of the petition attached. The documentary evidence should contain evidence of the date of birth of the petitioner, a certificate from the State Treasurer stating that petitioner has contributed to the Retirement Fund as required by the Act, and a certificate from the Ordinary of petitioner's county showing that the petitioner has served twenty consecutive years as a Judge of the Superior Court.
I think it most fitting that your n.any years of distinguished service on the bench should be officially recognized and honored by appointment as Judge Emeritus, and if I can be of any further service to you in this matter do not hesitate to call upon me. Your retirement from active service on the bench will be a real loss to your community and to the State, but I am sure that your retirement will be in name only and that you will continue to be of great service to the judiciary in the capacity of Judge Emeritus.
COURTS-Superior (Unofficial) .Application for appointment as Judge Emeritus may be made at any time during last term.
March 15, 1948 Honorable W. R. Smith Judge, Alapaha Judicial Circuit
I have your letter of March 8 in which you request some further information concerning the appointment of Judges of the Superior Courts, Emeritus.
Inasmuch as the Ordinary of your County has no record of your services on the bench, the Honorable Ben W. Fortson, Jr., Secretary of State, has kindly prepared his certificate certifying the dates of your commissions as Judge of the Alapaha Circuit. I enclose this certificate herewith.
I realize, of course, that your Ordinary cannot certify to the com(pletion
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of twenty years service by you until such period has actually been completed. However, the enclosed certificate will suffice, in my opinion.
Regarding the question as to how proof of your eligibility may be submitted before the expiration of your present term in the completion of your twenty years service, I suggest that you frame your petition for appointment so that it will state that at the end of your present term you will have served twenty years. Inasmuch as your appointment will not take place until your present term has been completed, there will be no discrepancy in a petition alleging such completion in future.
As I previously stated, you may make your petition at any time during the present term up to the date of expiration of your term.
This information is of course merely my personal opinion, but I trust it will be of assistance to you. Again let me say that if I can be of any further service to you in any way at any time, please call on me.
COURTS-Superior (Unofficial) 1. The Superior Court of one county may be held in another county of the district, and the Sheriff and Clerk of the former county may charge per diem for attending the Superior Court of their County.
April 20, 1948 Honorable Thomas F. Underwood County Attorney
This will acknowledge receipt of your letter of April 7th, 1948, in which you ask the following questions:
" (1) If the Superior Court of the County is held in another county, can the Court be opened there and the Sheriff and Clerk draw their per diem?"
"(2) Can pleas of guilty be taken out of the County where the crime was committed and the indictment had and the Sheriff and Clerk charge per diem for the days attending the Superior Court of their County?"
Code Section 24-3009 of the Georgia Code, Annotated, authorizes the judges of superior courts to hold adjourned terms in any county in their circuits if business requires it to close the do,ckets. This section also authorizr,s the judges to call special terms for criminal or civil suits at the discretion of the judge.
The constitutionality of this section was upheld in the case of Grinad and Benton vs. The State of Georgia, 34 Georgia 270, the court stating that it was not a delegation of the legislature's powers to allow the judges to fix the times for these special terms.
It was decided in the case of Sims vs. The State of Georgia, 51 Georgia 496, that the power and jurisdiction of the court at the adjourned term was full and complete.
From the foregoing citations, it will be seen that in the adjourned or special terms the court was to have no restriction on its powers or jurisdiction, therefore, the crime mentioned in your second question could be tried in another county under the authority of Code Section 24-3009.
Code Section 24-2714, Paragraph (2) and 24-2813, Paragraph (2) require the Clerk and Sheriff to attend alii sessions of their Superior Court. In my opinion, it would follow as a necessary consequence that per diem could be paid to the Clerk and Sheriff, no matter whether the Court is holding a regular,
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adjourned or special term so long as it is an authorized term of court. Both questions would, therefore, be answered in the affirmative.
Since the Attorney General is not authorized by law to render an official opinion to a private individual, anything said in this letter must be considered as merely an expression of my personal views upon the subject and not binding upon anyone.
COURTS-Superior (Unofficial) The Governor shall assign a Judge from another circuit to act for local Superior Court Judge during latter's illness.
December 28, 1948 Honorable Alfred E. Knaub Court Reporter
Your letter of December 14, 1948, receiver, in which you request information as to what provision we have by statute or constitution for a Judge to act in the place of a local Judge during his illness.
Georgia Code of 1933 Annotated, Section 24-2610, reads as follows: "Whenever it shall be made satisfactorily to appear to the Governor that any regular term of the superior court, a3 fixed by law, in any county, will not be held or continued in session because of the bodily or mental sickness or other disability of the judge of the superior court of the circuit in which such county is located, and when it shall likewise be made to appear that any adjourned term of the superior court, in any county, for like causes, will not be held or continued in session, it shall be the duty of the Governor to name and assign a judge of the superior court of some circuit other than the one in which such county may be located, to proceed to said county, and hold said regular or adjourned term of said court: Provided, that no judge shall be named or assigned to hold such court when the time fixed for holding the same shall conflict with the time fixed by law for the holding of any regular or adjourned term already called by him in his circuit." Under the constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. However, it is a pleasure for me to refer you to the provisions of law applicable to your question as a matter of information, and I trust that the above quoted law will help you in determining your question.
COURTS-Turnkey fees (Unofficial) The County is liable for a jailer's turnkey fees.
February 17, 1948 Honorable R. S. Wimberly Attorney at Law
I wish to acknowledge receipt of your letter of February 7, 1948, in which you request an opinion in regard to the question of counties being liable for Jailers' turnkey fees.
Replying thereto, wish to advise that the Attorney General is not author-
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ized under the law to render official opmwns to anyone except when directed by the Governor or the heads of the several State departments. Therefore, you will understand that the opinion herein given is strictly personal, unofficial and not binding.
The decisions rendered in the authority cited by you were made prior to the Act of 1945, which is codified in Section 24-2823 in the Pocket part in the Annotated Code of Georgia of 1933.
Code Section 24-2823 of the 1933 Code was stricken in its entirety in the Act of 1945, and a new code section to be numbered 24-2823, was substituted in lieu thereof. Under this section, enacted in 1945, it appears that the jail fees of sheriffs should be paid monthly by the county, and I am, therefore, personally and unofficially of the opinion that the Act of 1945 in repealing the former act and substituting a new section is controlling and the county would be liable for such fees.
CRIMES AND PUNISHMENT-Abortion (Unofficial) Code provisions relating to abortion.
August 16, 1948 Hon. Harold Baron, Feature Editor Today's Woman
This is in response to your letter addressed to the State Department of Health, requesting information concerning our abortion laws, and whether or not a drug like "Ergot" may be bought in a drug store in Georgia.
Code Sections 26-1101 and 26-1102 define abortions, and provide for the punishment thereof, and also prescribe when they may be legally performed. I am quoting these two sections as follows:
"Section 26-1101. Any person who shall administer to any woman, pregnant with a child, any medicine, drug, or substances whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such ehild, unless the same shall be necessary to preserve the life of such mother, or shall be advised by two physicians to be necessary for such purpose, shall, in case the death of child or mother be thereby produced, be guilty of an assault with intent to murder."
"Section 26-1102. Any person who shall wilfully administer to any pregnant woman any medicine, drug, or substance, or anything whatever, or shall employ any instrument or means whatever, with intent thereby to produce the miscarriage or abortion of any such woman, unless the same shall be necessary to preserve the life of such woman, or shall be advised by two physicians to be necessary for that purpose, shall be guilty of a misdemeanor."
Code Section 42-709 provides that ergot and other abortifacients may not be sold without prescriptions.
Under the Constitution and laws of this State, the Attorney General is prohibited from giving official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. I am glad however, to cite the provisions of law appli: cable to your question as a matter of information.
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CRIMES AND PUNISHMENT-Capital Pun,ihment (UnoUicial) Lists provisions of law as to capital punishment.
April 27, 1948 Miss Sally Nell Doherty
This will acknowledge receipt of your letter of recent date in which you enclosed a questionnaire and asked that we furnish the answers to certain questions relative to specified crimes and punishment in the State of Georgia.
Please be advised that the Attorney General of Georgia is prohibited by law from rendering official opinions, advice or information to anyone except the Governor and the heads of the various State Departments; however, I will be glad to furnish you the requested information in a strictly personal and unofficial manner.
I will herein set out your questions as asked and give the answers thereto as follows:
"1. Does your State have capital punishment?"-Yes. "2. If so what method is used?"-Electrocution. "3. What other methods of execution were used previous to the present method ?"-Hanging. "4. What is the minimum age at which a person can be executed?"-No age limit set out, however, it is presumed that a child under ten is incapable of knowing the difference between good and evil or right and wrong. "5. How many were executed in the following years? 1935, 1940, 1946 and 1947, men and women?" The record on this would have to be obtained from each warden in the State; however, the State Board of Pardons and Paroles advises that twelve were executed in 1946 and sixteen in 1947-all of these were men. It appears that there has never been but one woman executed in Georgia.
"6. Of these numbers how many were negroes?" I regret that I am unable to furnish you with this information, as the State Board of Pardons and Paroles is unable to supply a break-down on the races, as the record on executions is handled as a whole.
"7. What other crimes, if any, other than m:urder are punishable by execution?" Murder; Treason; Robbery by open force; Mayhem by Castration; Rape; Kidnapping for Ransom; Arson which produces death of any other person; Wilful destruction of any property by explosives which result in death of any other person; Wilful and corrupt perjury causing the death of any other person; Persons causing death resulting from Mob Violence; Wrecking or attempting to wreck trains, cars, bridges, etc., where death ensues to any person; Possession or control of poisonous snakes or reptiles where death ensues to any other person; Desecration of burial place of human body with intent to rob, steal, mutilate or maliciously molest remains of human body interred therein.
"8. In case of reprieve, what sentence is usually imposed?" In discretion of State Board of Pardons and Paroles.
"9. What are the main objections against capital punishment in your State?"-None.
"10. If capital punishment is not used in your State, what is the sentence for a serious crime-for example-murder?"-Capital punishment is used.
"11. How many were sentenced to this in 1940?"-This question is answered in your question 5.
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"12. Do you have provisions for pardon for a life sentence?"-Yes. "13. Under what conditions is the above granted?"-Vary according to the individual case and in the discretion of the State Board of Pardons and Paroles. I trust that the above is the desired information and will be of assistance to you in your Sociology Department.
CRIMES AND PUNISHMENT-Corporate Punishment (Unofficial) Corporal punishment of inmates of institutions, minor employees in manufacturing establishments, or as punishment for crime is prohibited.
December 3, 1948 Mrs. F. E. Rowan
This will acknowledge receipt of your letter of November 23, 1948, in which you inquire "if the State of Georgia has a law applying to corporal punishment".
Section 2-107 of the 1943 Code of Georgia reads as follows: "Neither banishment beyond the limits of the State, nor whipping, as a punishment for crime, shall be allowed." Section 54-206 of the 1943 Code of Georgia reads as follows: "No boss or other superior in any manufacturing establishment or machine shop shall inflict corporal punishment upon minor laborers; and the owners of such factory or machine shop shall be directly liable for all such conduct on the part of their employees; and such minor may sue in his own name for damages for such conduct, and the recovery shall be his own property and not belong to his parents." Acts of 1946, Part I, Title III, deals with corporal punishment in Section 12 thereof, at page 50, and the pertinent portion of this Section is quoted below: "Whipping of inmates and all forms of corporal punishment shall be prohibited. . . ." The above quoted excerpt deals with the State Board of Corrections. Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor .and heads of the various departments of State upon matters pertaining to the interests of the State. However, it is a pleasure for me to refer you to the provisions of law applicable to your question as a matter of information.
CRIMES AND PUNISHMENT-Obliteration of Serial numbers The only law relating to obliteration of manufacturers' serial numbers prohibits the purchase, sale or possession of automobiles, etc., of which serial number has fraudulently been defaced or altered.
May 24, 1948 National Better Business Bureau, Inc.
This will acknowledge your letter of May 14, requesting information as to whether the State of Georgia has any laws prohibiting the removing, destroying, or altering of manufacturer's serial numbers. The only law Georgia has on this subject is a penal statute in conjunction with our motor vehicle ,Statutes. This Code Section, 68-9916, provides:
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"It shall be unlawful to buy, steal, sell, receive, or dispose of, conceal, or have in possession, any automobile, motor vehicle, bicycle, motorcyde, or any other machine propelled by gasoline or electricity, from which the m".nufacturer's serial number or any other distinguishing number or identification mark has been removed, defaced, covered, altered, or destroyed for the purpose of concealment or misrepresenting the identity of said motor vehicle, automobile, bicycle, motorcycle or other such machine. Whoever shall knowingly be guilty of the violation of this section shall be held and deemed guilty of a felony, and upon conviction thereof shall be punished by confinement and labor in the penitentiary for not more than 10 years and not less than one year."
I cannot say how far the courts will extend the phrase "or any other machine propelled by gasoline or electricity" that is, how many of the gas and electric appliances you referred to, if any at all, this section would cover.
CRIMES AND PUNISHMENT-Fair Trade Act (Unoffiei.al) The posting of service charges by a Retailers Association is probably a violation of the Fair Trade Act.
March 23, 1948 Honorable Milton F. Allen, Executive Secretary Georgia Association of Petroleum Retailers, Inc.
This will acknowledge receipt of your letter of March 2, 1948, in which you request that I give you an opinion as to whether the posting of service charges by members of your Association who wish to sell their services at the posted prices would in any way be a violation of State laws.
Under the law I am prohibited from giving an opinion to anyone except the Governor and the heads of the various Departments of the State, and then only upon matters in which the State is involved. Therefore, I am unable to give you an opinion upon the question raised in your letter.
However, in an effort to be of assistance to you in any way I can, I call your attention to Art. 4, Sec. 4, Par. 1, of the Constitution of Georgia, which is codified under Section 2-2701 of the Pocket Supplement of the 1933 Annotated Code, which provides:
"Contracts to defeat competition.-All contracts and agreements which may have the effect, or be intended to have the effect, to defeat or lessen competition, or to encourage monopoly, shall be illegal and void. The General Assembly of this State shall have no power to authorize any such contract or agreement."
In the case of Brown & Allen vs. Jacobs' Pharmacy Co., 115 Ga. 429, the Supreme Court said:
"1. A combination of mercantile dealers to compel another dealing in similar goods to sell at prices fixed by it, or, upon his refusal so to do, to prevent those of whom its members are purchasing customers from selling goods. to him, is upon general legal principles, contrary to public policy and void; and the members of such a combination may, collectively or individually, be, by appropriate injunction, restrained from carrying into effect such purpose as that indicated above."
The question that you raise is one which requires considerable study of
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the mechanics of the operation that you mention to determine whether or not the plan would violate the Constitutional provisions above stated, and I would suggest that you have your legal advisers to thoroughly study the matter; it may be that some method could be worked out by which you could accomplish what you desire.
CRIMES AND PUNISHMENT-Ga.mbling (Unofficial) Jurisdiction to bring criminal prosecution against violators of the gaming laws is in the Solicitor General.
January 13, 1948 Hon. R. A. Perrott, President Brunswick Chamber of Commerce
I am pleased to acknowledge receipt of your letter of January 9th, in reference to gambling games being conducted in Mcintosh and Bryan Counties.
The conditions set forth in your letter are indeed deplorable, and will certainly give our State a bad name among tourists of other States.
I would suggest that you refer all of this information to the Solicitor General in order that he can consider the matter of bringing criminal prosecu tions against those persons violating the gaming laws of our State. This officer also has the authority to seek an injunction against such places if he finds that they are being operated illegally and thereby constitute a public nuisance.
The powers relating to my office do not permit the bringing of criminal prosecutions in cases of this nature. Our authority is limited to those instances wherein the State itself is involved. However, I am always glad to lend any aid or assistance that I can to the local law enforcement officers in breaking up unwholesome situations of this character.
CRIMES AND PUNISHMENT-Minors (Unofficial) 1. Any person of sound mind upon reaching the age of 14 is responsible for his criminal acts. 2. No distinction is made between the sexes as to the punishment prescribed for a given offense.
February 25, 1948 Mr. Obie Davis, St. M. 1jC
I wish to acknowledge receipt of your letter of February 16, 1948, in which you request information relative to punishment of criminals in Georgia.
The Attorney General is not authorized under the law to render official opinions or information on questions except when directed by the Governor or the heads of the several State departments. Therefore, you will understand that the information given herein is strictly personal and unofficial.
Section 26-301 of the Annotated Code of Georgia of 1933, reads as follows: "Persons who are considered of sound mind.-A person shall be considered of sound mind who is neither an idiot, a lunatic, nor afflicted with insanity, and who has arrived at the age of 14 years, or before that age if such person knows the distinction between good and evil." Under this section, when a person reaches the age of 14 years he becomeS:
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responsible for his acts provided, of course, he is not an idiot, a lunatic, nor afflicted with insanity.
As to the second question, I wish to say that under the law of Georgia a woman convicted of crime is subject to the same punishment as a man; there is no distinction whatever.
CRIMES AND PUNISHMENT-Lotteries (Unofficial) Operation of a Bingo game is illegal.
January 26, 1948 Mr. C. Robert Duvall
I wish to acknowledge receipt of your letter requesting information relative to the game of Bingo-as to whether or not it was a violation of the laws of this state.
The Attorney General of Georgia is not authorized under the law to give official information or opinions, except when directed by the Governor or the heads of the several State Departments. Therefore, the information given herein is strictly personal and unofficial.
Section 26-6403 of the Annotated Code of Georgia of 1933 makes it a misdemeanor for any person, by himself or servant or other agent, to keep or employ any table of whatever name, kind, or description for gaming, and our courts have held that this section includes any device that may be kept or used or presided over by one person where others miay play and bet thereat.
Section 26-6502 of said Code makes it a misdemeanor for any person who, by himself, or another, shall keep, maintain, employ, or carry on any lottery or other scheme or device for the hazarding of any money or valuable thing. Our courts have held:
"Any scheme or device operated by person, by which one participating therein might either lose money invested or get more than his money's worth, operator retaining money so lost, is scheme or device for hazarding of money within the meaning of the above section."
Under the above sections and the decisions rendered, it appears that any game or device for the hazarding or other thing of value, is a violation of the. laws of Georgia.
CRIMES AND PUNISHMENT-Lotteries (Unofficial) The sale of tickets entitling the holder to a chance on a prize is illegal.
April 15, 1948 Mr. R. R. Musselman Pres. Local No. 54 A. F. G. E.
This will acknowledge receipt of your letter of April 12th in which you request my opinion on the legality of having a dance and selling tickets at One Dollar each for admission and during the dance giving away an automobile to one ticket holder as a door prize. You further state that the purpose of this is to raise a welfare fund for helping needy cases under the American Federation of Government Employees.
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Please be advised that the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the heads of the various State Departments; therefore, any advice, information or opinion given herein is to be considered strictly personal and unofficial and not binding on any one.
, The 1933 Georgia Oode, Annotated, Section 26-6501 provides as follows.: "Any person who, either by himself or his agent, shall sell or offer for
sale, or procure for or furnish to any person any ticket, number, combination, or chance, or anything representing a chance, in any lottery, gift enterprise, or other shnilar scheme or device, whether such lottery, gift enterprise, or scheme shall be operated in this State or not, shall be guilty of a misdemeanor."
The Supreme Court of Georgia held in Russell v. Equitable Loan & Secur. Corp., 129 Ga. 154, 161, that "Chance, as here used, refers to that chance which is employed in connection with lottery schemes, where the attempt is to attain certain ends, not by skill or any known or fixed rules, but by the happening of a subsequent event, incapable of ascertainment or accomplishment by means of human foresight or ingenuity."
In the case of Barker vs. The State, 56 Ga. App. 705, it was held that Section 26-6501 (above quoted) of the Code "... condemns and makes criminal 'gift enterprises' ... and other named schemes for the hazarding of money or other valuable thing", and the Court further stated in Barker vs. The State, supra, that "A gift enterprise, is a sporting artifice by which, for example, a merchant or tradesman sell his wares for their market value, but by way of inducement gives to such purchaser a ticket which entitles him to a chance to win certain prizes, to be determined after the manner of a lottery".
In the same case Barker vs. The State, supra, the Court went on to say "Essentials of lottery are consideration, prize, chance".
It was stated in Jorman v. The State, 54 Ga. App. 738, by the Courts that "A motion-picture show operator who gives to his customers, in addition to the admission to the show, opportunity to draw by lot or chance a prize of money or property, is guilty of conducting a lottery". And again in Barker v. The State, supra, it Wallo held that " 'Bank night' conducted by theater, wherein prize was given to holder of number drawn by lot, if not lottery, was at least gift enterprise. . . . ."
The Court further stated in the case of Barker vs. The St.ate, supra, "Gravamen of offense is baneful effect on public and not necessarily wrongful intent of person conducting enterprise." And in the case of Equ'ita.ble Loan, et. al vs. Waring, 117 Ga. 599,615, the Court stated: "As fast as statutes are passed, or decisions made, some skilful change is devised in the plan of operations, in the hope of getting just beyond the statutory provisions, but so long as the inherent evil rem,ains, it matters not how the special facts may be shifted, the scheme is still unlawful."
Oode Section 26-6502 of the 1933 Georgia Code Annotated provides:
"Any person who, by himself or another, shall keep, maintain, employ, or carry on any lottery or other scheme or device for the hazarding of any money or valuable thing, shall be guilty of a misdemeanor."
In this connection it was stated by the Court in Anderson v. The State, 72 Ga. A,pp. 510, that, "The purpose of Section 26-6502 of the Code is 'to suppress lotteries by making it an offense to carry on one, or to do any of the
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several acts entering into the conduct of such a business; and the statute was framed, doubtless with a view to reach all persons who might carry on, or participate in carrying on, the forbidden enterprise'."
In the case of Stan,dridge v. Williford-Burns-Ric.e Co., 148 Ga. 283, the Court held that, ". . . this was a gift-enterprising scheme, and contrary to public policy."
The definition of lottery is given in the Standard Dictionary as "A scheme for distributing prizes by chance or lot, where a valuable consideration is given for the chance of drawing a prize; especially where such chances are allotted by sale of tickets."
And in Black's Law Dictionary the definition of lottery is given as, "Any scheme for the disposal or distribution of property by chance among persons who have paid, or promised or agreed to pay, any valuable consideration for the chance of obtaining such property, upon any agreement, understanding, or expectation that it is to be distributed or disposed of by lot or change, whether called a 'lottery,' a 'raffle', or a 'gift enterprise', or by whatever name the same may be known."
Lotteries and similar schemes are prohibited by the law of this State. Therefore, it is my personal and unofficial opinion that lottery, gift enterprises or any similar schemes are completely and strictly forbidden and prohibited by the laws of Georgia and that any person participating therein would be guilty of an illegal and unlawful act, as shown by the above quoted statutes and case citations. It is further my unofficial and personal opinion that, although your enterprise may be for a worthy cause, the selling of tickets for a dance or any other purpose, and the chance of winning an automobile or any other thing for a prize, upon the purchase of the ticket, would come within the meaning of the above quoted code sections and cited cases and therefore be in violation of the Georgia law as applies to lottery, gift enterprises and similar scheme. As set out in your question there would certainly be a consideration, a prize and a chance and this is the essentials of lottery. As above stated and shown from the cases cited, the offense is the baneful effect on the public and not necessarily the wrongful intent of the person conducting the enterprise, as a gift-enterprise or other such scheme is contrary to public policy.
CRIMES AND PUNISHMENT-Lotteries (Unofficial) Slot machines, as gambling devices, are illegal.
April 19, 1948 Mr. Walton Rankin
I have your post card which was received in my office on April 2, 1948 in which you requested my opinion on the legality of slot machines in Georgia.
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the heads of the various State departments; therefore, this is strictly a personal opinion and is not binding on anyone.
There are various types of machines which come under the general heading of slot machines, such as cigarette, pin ball, etc.; however, I am assuming that
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you mean the type of machine in which one places a coin and either receives more coins or none at all.
Section 26-6502 of the Georgia Code states: "Carrying on a lottery.-Any person who, by him.self or another, shall keep, maintain, employ, or carry on any lottery or other scheme or device for the hazarding of any money or valuable thing, shall be guilty of a misdemeanor." This Section was construed by the Supreme Court in the case of Elder vs. Camp, Sh.eriff, et al, 193 Ga. 320. "Apparatus known as a 'slot machine', by which person depositing money therein may, by chance, get directly or indirectly money or articles of value worth either more or less than money deposited, falls within purview of this section, and cannot be treated as one kept only for amusem*nt." Therefore, under the above authority, slot machines as purely gambling devices are illegal in Georgia.
CRIMES AND PUNISHMENT-Lotteries (Unofficial) Sets out law applicable to slot and vending machines.
April 22, 1948 Honorable Wm. I. Godwin Judge, Recorder's Court of Johnston County
In my reply of April 20 to your letter of April 17 in which you requested information on slot and vending machines, a Code Section and case citations were inadvertently omitted, which I am quoting in this letter as follows:
Section 26-6502, Code of Georgia Annotated: "Any person who, by himself or another, shall keep, maintain, employ, or carry on any lottery or othtr scheme or device for the hazarding of any money or valuable thing, shall be guilty of a misdemeanor." In Keeney v. State of Georgia, 54 Ga. App. 239, it was held: "It is illegal in this State to operate a lottery. The licensing and taxing of a vending machine will not prevent the prosecution of the operator, where the machine in the manner operated constitutes a lottery. . . ." In Brockett v. The State of Georgia, 33 Ga. App. 57, the Court said: "Anyone operating a slot machine where persons depositing their money therein and 'playing' the machine may, by chance, get, directly or indirectly, articles of value worth more than the money deposited in the machine is guilty of a violation of this section." Under our law I am prohibited from rendering official opinions or advice to anyone except the Governor and heads of the various departments of State government, therefore, the above remarks are entirely personal, unofficial, and not binding on anyone.
CR.IMES AND PUNISHMENT-Lotteries (Unofficial) The offering of door prizes partakes of the nature of a lottery.
September 29, 1948 Mr. Ralph M. Horton, President Consolidated Merchandising Systems, Inc.
This will acknowledge receipt of your letter of September 22, 1948, in which you ask for an opinion on the following information:
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"Each week the Agency will m:ake available cash prize money in the amount of $1,000 per week; the merchants will be provided with Custome~ Registration Certificates for use by any person above the age of twelve (12) years.
"The customer merely registers his name, address and gives proof of identification. There is no obligation to pay for the Registration Certificate, and the Registration Certificate is mandatory upon request, whether or not the applicant is a customer of the store or not.
"Each week drawings will be held from the numbers on the Registration Certificate, and the party holding the winning number will be eligible for the particular prize."
The Attorney General may not give his official opinion to anyone but the Governor or the various heads of State departments upon written request, and this opinion should be regarded as unofficial and of no binding effect upon any person or the Law Department.
Unofficially, I am inclined to the opinion that such a transaction as you describe would partake of the nature of a lottery, or a scheme in the nature of a gift enterprise, and as such would be prohibited under the Georgia Laws, Code Sections 26'-6501 and 26-6502 of the Georgia Code of 1933, which reads as follows:
Code Section 26-6501. "Sale, etc., of lottery tickets.-Any person who, either by himself or his agent, shall sell or offer for sale, or procure for or furnish to any person any ticket, number, combination, or chance, or anything representing a chance, in any lottery, gift enterprise, or other similar scheme or device, whether such lottery, gift enterprise, or scheme shall be operated in this State or not, shall be guilty of a misdemeanor."
Code Section 26-6502. "Carrying on a lottery.-Any person who, by himself or another, shall keep, maintain, employ, or carry on any lottery or other scheme or device for the hazarding of any money or valuable thing, shall be guilty of a misdemeanor."
In addition to the above Code Sections, our Courts have ruled on similar questions, and in Barker vs. State, 56 Ga. App. 705, 713, a case involving "Bank 'Night" at a theatre, it was said:
"The gravamen of the offense charged is not necessarily in the wrongful intent of the theater, but in the baneful effect upon the public." Also, this is in line with the statement of the Supreme Court of Georgia in Whitley vs. McConnell, 133 Ga. 739, 740, that
"Enticing offers of this kind are unfortunately not uncommon in the effort to attract trade or make sales. But they are illegal. That a lottery or gift enterprise scheme is added to legitimate business to draw customers or buyers by appealing to the hope of securing something by chance, beyond the article actually bought, does not sanctify such an appeal to the gambling disposition so common in human nature, or make the agreement lawful. . . . This has been repeatedly announced, not because of any more regard for the promisor than the promisee; but simply because the law must be upheld, and courts will ,not enforce contracts of this character, which violate its positive prohibitions."
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CRIMES AND PUNISHMENTS-Manslaughter (Unoffidal) In the absence of evidence showing participation, the owner of an automobile riding therein at the time of a fatal accident is not chargeable with manslaughter.
May 14, 1948
Mr. John E. Teate Attorney at Law
In your letter of May 7, 1948, you request information on Georgia law as to whether the owner of an automobile who is merely riding in the automobile may be charged with manslaughter when it is involved in a fatal accident.
I am prohibited by law from rendering official opinions to anyone except the Governor and heads of the various State departments, therefore, the following remarks are entirely personal, unofficial, and not binding on anyone.
As I find no case in this State directly in point on your question my opinion must necessarily come from deductive reasoning on the subject. Involuntary manslaughter is defined in Code Section 26-1009 as "the killing of a human being without any intention to do so, but in the commission of an unlawful act, or a lawful act, which probably might produce such consequence, in an unlawful manner." From this it will be seen that if the owner is in the commission of an unlawful act while riding in the car he can be guilty of manslaughter. Now the only question is as to whether he can be found guilty of an unlawful act while riding in his car. In a recent case in Georgia (Mitchell v. The State, 38 S. E. 2nd, 95) a defendant was convicted of operating an automobile upon a public highway at a greater rate of speed than 55 miles per hour, even though another person was driving the car on the theory that he was aiding and abetting the commission of the act as provided in Code Section 26-501.
Therefore, I do not hesitate to say that an owner riding in a car can under some circ*mstances be charged with manslaughter, however, I do not attempt to say how far he must go to be considered as aiding or abetting although I might point out that "the mere presence of one where a crime is being committed without any evidence to show further participation in it directly or indirectly is insufficient as a basis for conviction. (Jones v. The State, 13 S. E. 2nd, 91).
CRIMES AND PUNISHMENT-Pool Rooms (Unofficial) 1. Minors may not be admitted to pool rooms unless accompanied by or having written permission of a parent. 2. No gambling of any form or devices therefor may be kept in any pool room.
March 1, 1948 Mr. H. D. Sego
I wish to acknowledge receipt of your letter of February 25, 1948, in which you request an opinion as to the age of a minor to play pool and also is it against the law to play what is called 'check' within pool rooms.
Replying thereto, wish to state that the Attorney General is not authorized under the law to render official opinions upon any matters except when directed
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by the Governor or the heads of the several State departments. Therefore, you will understand that the information given herein is strictly personal, unofficial, and not binding.
Section 84-1601 of the Annotated Code of Georgia of 1933, reads as follows: "Billiards" and "billiard room'' defined.-"The term 'billiards,' as used in this Chapter, shall mean any of the several games played on a table surrounded by an elastic ledge of cushions, with balls which are impelled by a cue, and shall include all forms of the game known as 'caron billiards,' 'pocket billiards' (formerly called 'pool'), and 'English billiards.' The term 'billiard room' shall mean any public place where the game of billiards is permitted to be played and for which a charge is made for use of equipment." Section 84-1611 reads as follows: "Minors admitted, when.-It shall be unlawful for any person who has not reached the age of 21 years to play billiards, or to be permitted to remain in a billiard room for any purpose, unless accompanied by a parent or guardian, or with a written permit from parent or guardian witnessed by a notary public with seal. In the event that the proprietor of a billiard room is of the opinion that any person desiring admission thereto is under the age of 21 years, he shall require such person to certify his age in writing or to produce a legal permit." Section 84-1612 reads as follows: "Placard as to minors to be posted by licensee.-Every licensee shall post in his room where said tables are operated a placard having section 84-1611 conspicuously written thereon, for the information of his patrons.'' Section 84-1613 reads as follows: "Gambling; posting of sporting result::;; sale, etc., of intoxicating liquors.No dice, cards, dominoes or other games of chance shall be permitted or any form of gambling allowed in any billiard room, or in any other business place operated in connection therewith, and it is expressly provided that such games as are now known as Kelly pool, keno, pigeon pool, star pool, scrub and similar gambling devices are prohibited. No racing or other betting pool shall be exhibited or sold in such place of business. The use of baseball tickets and the posting of results of sporting events is expressly prohibited in billiard rooms or in any place operated in connection therewith. No intoxicating liquors shall be sold, served, or allowed to be used, in or on the premises." I do not understand what you mean by the word 'check' in your letter, but it appears from Section 84-1613 that it would be a violation of the law to play any game of chance in a pool room or in any other business place operated in connection therewith, and especially the games set forth in said section. You will note that in order for a minor to be allowed in pool rooms, it will be necessary for him to be accompanied by his parent or guardian, or with a written permit from such parent or guardian witnessed by a notary public with seal.
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CRIMES AND PUNISHMENT-Public Officers (Unofficial) 1. It is impossible for a public officer to commit a crime in his official capacity. 2. In an indictment by the United States of a public official, the charges are against him individually and he may not be represented or assisted by the Attorney General of the State.
July 1, 1948 Hon. Tom Linder Commissioner of Agriculture
I have considered your request for legal representation by the State Law Department in the case now pending before the District Court of the United States for the District of Columbia.
We have carefully analyzed the indictment which you supplied, and find ~hat the charges made by the United States government are directed against you as an individual and not against you in your official capacity as Commissioner of Agriculture of the State of Georgia. lt is true that in several places in the bill you are referred to as "ComJmissioner of Agriculture", but this term is merely descriptive and for identification purposes. The gravamen of the indictment is directed against you as an individual. For this reason, I am sure that you will agree with me that the State Law Department could not represent or assist you in the trial of this case.
I also call your attention to the elementary principle of law that it is a legal impossibility for a public official to commit a crime in his official capacity. When a public official is charged with a violation of the criminal laws, it must necessarily be understood that such charges can only rest against him as an individual.
In the past, the State Law Department has made every effort to represent you as Commissioner of Agriculture in cases directed against you in your official capacity. In all of these cases however, you will recall that an instrumentality of the State government was involved or the property of the State was sought to be affected by the acts of those of which you complained. Those were cases involving you in the discharge of your official duties, and the State Law Department gave you full and complete representation before the courts. The present controversy however, being a personal charge involving an alleged violation of the criminal laws, does not come within the above cases which involved the operation of the State government.
Of course you understand that nothing said in this letter is to be considered in any way in relation to the validity of the charges made by the government. I have simply analyzed the indictment for the sole purpose of determining whether or not the government was attempting to bring charges against you as Commissioner of Agriculture, or whether such charges were directed against you in your individual capacity.
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CRIMINAL PROCEDURE-Alternative Punishments One convicted of a misdemeanor may be sentenced to any authorized punishment or punishments, but any one punishment which exceeds the amount or time authorized is illegal with respect to such excess.
February 27, 1948 Honorable Charles A. Williams, Director State Board of Corrections
This is to acknowledge your communication dated February 18, 1948, together with its enclosure, a copy of the sentence rendered against the defendant in the case of State versus William Nutter tried in the City Court of Statesboro.
In your communication you question the validity of the sentence imposed and request an official opinion upon it..
By Code Section 27-2506, Georgia Code of 1933, Annotated, it is provided as follows:
"Except where otherwise provided, every crime declared to be a misdemeanor shall be punishable by a fine not to exceed $1,000, imprisonment not to exceed six months, to work in the chain gang on the public roads, or on such other public works as the county or State authorities may employ the chain gang, not to exceed 12 months, any one or more of these punishments in the discretion of the judge: ..."
It is to be seen from the quoted Code Section that sentences alternative within bounds are permissible. The statute permits a misdemeanor to be punishable by (1) a fine not in excess of $1,000, (2) imprisonment in jail not to exceed 6 months, and (3) to work in the chain gang on the public roads, or on such other public works as the county or State authorities may employ the chab gang, not to exceed 12 months. Any one of the three authorized punishments, or any two of them, or all three might be imposed upon a convicted defendant in the discretion of the judge. However, the judge may not impose a sentence! for any one of the three punishments beyond the maximum amount or maximum time authorized.
An examination of the sentence imposed upon defendant Nutter reveals that the trial judge ordered that the defendant serve in the public works camp for 9 months in default of the payment of a fine of $75.00; that 6 months additional time be served, apparently in the public works camp, but to be "probated upon a payment of $20.00 to Rosenberg".
From the above facts founds in the sentence, it is to be seen that in effect the Court imposed a 'Sentence totaling 15 months in the public works camp upon the defendant. This is illegal under Code Section 27-2506.
It has been repeatedly held in this State that where a sentence contains an illegal provision and in addition contains valid ones, the former will not operate to render the latter null and void; but that the valid portions would form the sentence and as such would be enforceable. See the cases of Roper v. Mallard, 193 Georgia 684, and Brown -v. City of Atlanta, 123 Georgia 497.
Accordingly, since the statute does not permit a longer sentence than 12 months on the public works and as by combining the provisions of this sentence the statutory maximum sentence would be exceeded, it is my opinion that the provisions of the sentence under consideration, insofar as it provides for "6
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months additional but probated upon payment of $20.00 to Rosenberg", is illegal and void; that the portion of the sentence providing for 9 months on the public works, subject to conditions, is valid and enforceable; that you should therefore limit your computations upon the said sentence accordingly.
DIVORCE AND ALIMONY-Divorce Procedure in divorce actions.
February 12, 1948 I wish to acknowledge receipt of your letter of February 5, 1948, in which you request certain information and opinion in regard to the divorce laws of Georgia. Replying thereto, wish to state that the Attorney General is not authorized under the law to give information or opinions except when directed by the Governor or the heads of the several State departments, and then only upon State matters. Therefore, you will understand that the information given herein is strictly personal, unofficial, and not binding. Total divorces in Georgia in proper cases may be granted by the Superior Court, and unless an issuable defense is filed, or a jury trial demanded in writing by either party on or before the call of the case for trial, the Judge shall hear and determine all issues of fact and law and any other issues made in the pleadings, and upon the verdict or judgment rendered authorizing the grant of a total divorce, the verdict or judgment shall not become final for a period of thirty days. At the expiration of said period of thirty days, the verdict or judgment, either or both, shall become of full force and effect, unless some person at interest shall file in court a written petition setting forth good and sufficient grounds for the modification or setting aside of such verdict or judgment. When such petition is filed it shall be decided by the Judge unless a jury trial of the issues raised thereby is demanded by any party. The action for divorce shall be brought by written petition and process, the said petition to be verified by the plaintiff. The petition shall show whether or not there are any minor children of the parties, the name and age of each, and where alimony or support of the division of property is involved, the petition shall show the property and earning of each party. The respondent may in his or her plea and answer ask a divorce in his or her favor, and if, on the trial, the court or jury shall believe that such party, instead of the petitioner, is entitled to the divolce, they may so find upon legal proof, so as to avoid the necessity of cross-action. Final judgment shall conform to the pleadings and evidence and may restore the divorced wife's maiden name, if requested. When a divorce shall be granted, the jury or the Judge shall determine the rights and disabilities of the parties. In Georgia the law requires an applicant for divorce to be a bona fide! resident of the State at least twelve months before the filing of such suit. In regard to the costs of such procedure, the court costs vary in certain counties in Georgia. The lowest costs of the Clerk of the Court for filing the petition is $10.00. The matter of attorneys' fees is a matter of contract between the applicant and the attorney.
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In regard to the question as to whether the several states of the Union recognize divorces granted in Georgia, I wish to state that each state has its own laws respecting marriage and divorce, and I, therefore, can give you no opinion or information in regard thereto.
DIVORCE AND ALIMONY-Divorce (Unofficial) A residence of 12 months is required for divorce. Decrees become final only after 30 days and marriages contracted within that period are void.
April 5, 1948 Doctor W. L. Meyer Superintendent and Medical Director South Dakota State Sanatorium for Tuberculosis
This will acknowledge receipt of your inquiry as to Georgia divorce laws on November 29, 1947, regarding residence requirements and remarriage.
The Constitution and Code of Georgia both provide that no application for divorce shall be granted to any person who has not been a bona fide resident of the State for 12 months before the filing of the application for divorce (Section 30-107, Georgia Code of 1933 as amended). The law also provides that a decree of divorce does not become final until thirty days after the granting of the decree. Whether a marriage contracted within the thirty day period, though void and possibly bigamous in its inception, could become a valid common-law marriage by ratification if continued beyond the thirty day period, has not been decided in any case which has reached the appellate courts, so far as we know.
DIVORCE AND ALIMONY-Divorce (Unofficial) Lists grounds of divorce.
April 5, 1948 Mr. Harry A. Maltz
Replying to your inquiry received March 27th, 1948, the Constitution and Code of Georgia both provide that no divorce shall be granted a person who has not been a bona fide resident of the State for twelve months before filing of the application for divorce.
The grounds for divorce are': 1. Intermarriage by persons within the prohibited degrees of consanguinity and affinity. 2. Mental incapacity at the time of the marriage. 3. Impotency at the time of the marriage. 4. Force, menaces, duress, or fraud in obtaining the marriage. 5. Pregnancy of the wife, at the time of the marriage, unknown to the husband. 6. Adultery in either of the parties after marriage. 7. Wilful and continued desertion by either of the parties for the term of one (1) year. 8. The conviction of either party for an offense involving moral turpitude,
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and under which he or she IS sentenced to imprisonment in the penitentiary for two years or longer.
9. Habitual intoxication. 10. Cruel treatment, which shall consist of the wilful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb or health.
The foregoing provisions are found in Sections 30-107 and 30-102, respectively, of the Georgia Code of 1933 as amended.
DIVORCE AND ALIMONY-Divorce (Unofficial) A Mexican divorce being invalid in Georgia, regardless of an intervening attempted marriage, divorce and remarriage, the initial marriage remains legal and there is no marital status under the third attempted marriage on which a divorce could operate.
July 15, 1948 Hon. Arthur Sherman
I am pleased to acknowledge your letter of July 17th, in which you state that a man and a woman of lawful age procured a Mexican divorce without leaving the State of New Jersey, and the man remarried another New Jersey woman immediately thereafter and moved to Florida. That he was then divorced in Florida and immediately remarried another woman in Georgia, and that the former wife had the Florida judgment set aside. You desire to know if this is a legal marriage and if not, would you advise divorce.
Under the Constitution and laws of the State of Georgia, the Attorney General is not permitted to render official opinions to individuals, but can only render opinions to the Governor and heads of departments of State. However, I am glad to reply to your letter as a matter of information.
The latest case which has been decided by the Supreme Court of our State is the case of Christopher vs. Christoplher, 198 Ga. p. 361. To my mind, this case answers your inquiry. The headnotes in the case are as follows:
"(2) The 'full faith and credit' clause of the Federal constitution has no application to a judgment or decree obtained in a foreign country, and comity will be applied only in a case where the laws and judicial proceedings of a foreign jurisdiction do not involve anything immoral, contrary to public policy, or violative of the conscience of this State."
"(a) The evidence showing that the petitioner, a married woman, fraudulently obtained from her husband a decree of divorce in Chihuahua, Mexico, which was null and void because of lack of jurisdiction of the parties by the court rendering the same, such decree of divorce is contrary to the public policy of this State and will not be recognized as valid under its comity."
"(b) By reason of the existing undissolved marriage with her first husband, she was incompetent to contract marriage with another and her purported marriage to the defendant after such Mexican divorce was null and void. Not being his wife, she was not entitled to a divorce, alimony, or attorney's fees, as sought in the present action, and the trial court erred in overruling the general grounds of the defendant's motion for a new trial."
"(3) A void judgment of a foreign country, obtained by fraudulent repre-
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sentations as to residence, may be attacked in any court in this State, and by any person whenever material to his interest.
"(a) The public policy of this State can not be circumvented by any action or agreement of individuals, and prevents recognition of a decree of divorcet fraudulently obtained in a foreign country in a court without jurisdiction of the parties. Hence, the fact that the defendant here encouraged or collaborated with the petitioner in obtaining from her first husband, by fraud, a void decree in a foreign country, would not, in an action for divorce against him, estop him from attacking such decree as void and against the public policy of this State."
For your information, I also quote the following Code Sections: "53-102. To be able to contract marriage, a person must be of sound mind; if a male, at least 17 years of age, and if a female, at least 14 years, and laboring under none of the following disabilities, viz: 1. Previous marriage undissolved. 2. Nearness of relationship by blood or marriage, as hereinafter explained. 3. Impotency." "53-104. Marriages of persons unable to contract, or unwilling to contract, or fraudulently induced to contract, shall be void. The issue of such marriages, before they are annulled and declared void by a competent court, shall be legitimate. In the latter two cases, however, a subsequent consent and ratification of the marriage, freely and voluntarily made, accompanied by cohabitation as husband and wife, shall render valid the marriage."
DIVORCE AND ALIMONY-Divorce (Unofficial) Requirements as to residence and service in divorce actions.
July 19, 1948 Mrs. R. L. Williamson
This will acknowledge receipt of your letter of July lOth in which you ask certain information relating to obtaining divorces in Georgia.
The Attorney General cannot under the law render official opinions to anyone except the Governor and the various heads of the departments of state.
I would suggest that if you find it necessary to obtain further advice that you communicate with an attorney in the private practice of law. However, I am glad to give you the following information.
Georgia law provides that a person obtaining a divorce in Georgia be a bona fide resident of the State for twelve months prior to the institution of such proceedings. Whether or not a person has been a bona fide resident for that length of time is a matter of fact. However, the court has held that the law properly construed requires that the plaintiff must have been domiciled in the State for twelve months before institution of the action and does not require in addition that the plaintiff shall have actually been in the State all of the time during that period.
Continued desertion for a period of one year is ground for divorce in Georgia. There must be a service on the defendant in a divorce action. Personal service is required where the defendant is a resident of this State and if a nonresident, service is perfected by publication, that is a notice is published upon order of the court, in the paper in which Sheriff's advertisem*nts are published in the county in which the divorce is obtained, twice a month for two months.
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A divorce action is brought in the county of this State where the defendant resides, if a resident of Georgia, if a non-resident, then in the county in which the plaintiff resides.
EDUCATION-Bookmobiles The State Superintendent of Schools may not contract for liability insurance for State-operated bookmobiles because of the State's immunity to suit for torts.
August 9, 1948 Honorable M. D. Collins State Superintendent of Schools
I have your letter of July 27 in which you request my opm10n as to whether or not liability insurance should be carried on bookmobiles.
It is not clear to me from your letter what agency owns the bookmobiles, that is, whether they are owned by the State or County or other agency. I am presuming that they are the property of the State, and the following remarks are based entirely upon this presumption.
My predecessors in office and I have several times previously ruled (see opinion of Attorney General T. Grady Head, dated February 18, 1943, rendered to Honorable Ellis Arnall, Governor) that since the State of Georgia is not liable to suit without its consent and is not liable for torts of its officers, agents, and employees unless made so by law, there is no legal duty resting on the State to procure liability insurance for the protection of others.
In the absence of such a legal duty, it would seem improper to expend State funds to procure such insurance, and it is therefore my opinion that contracts for liability insurance covering State owned and operated bookmobiles are not legally authorized.
EDUCATION-Building Stand.ards The Code provision as to establishment of a code of school building standards being dependent upon request by school systems, the relationship cannot be initiated by the State Department of Education and the application of the provision cannot be uniform.
November 10, 1948 Dr. M. D. Collins State Superintendent of Schools
You ask in your letter of November 8 if in my opinion Code Section 32-420 of the Acts of 1945, page 200, limits the application of rules and regulations embodied in a code to those county and independent systems which request services from the State Board, or if there is authority under this Act to apply a code of standards to all systems within the State.
The Code Section referred to reads as follows: "Power of Board to Determine Needs and Adopt Building Practices and Standards. In order to assist the boards of ed,ucation of county and independent school systems, upon their request, the State Board of Education is hereby authorized and empowered to make comprehensive studies to determine the
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need and the location of public school buildings, to determine the safety and educational requirements of public school buildings, and to plan the methods of financing the cost of constructing and equipping such buildings; and to establish a code of school building practices and standards." (Underscoring mine.)
In view of the fact that it would not be possible for you to have a set uniform code applicable to all county and independent systems under the above quoted provision of the Act, I suggest that it be amended so as to eliminate the conditional requirement. In other words, under this Code Section, the relationship between the Boards of Education and the State Department of Education for purposes of applying a uniform code of standards to all systems within the State would have to be created on the motion of the local Boards and could not be initiated by your department. The application _of the Code Section is a nullity as far as uniformity is concerned.
EDUCATION-City Board (Unofficial) Requirements as to dress in physical education classes of city schools may be appealed to the school superintendent, thml to the County Board of Education, and finally to the State Superintendent of Schools.
March 31, 1948 Rev. J. R. Hunt
This will acknowledge receipt of your letter of March 23, 1948 stating that your daughter has been expelled from school because she declined to wear :Shorts to practice "physical education".
Under the law I am prohibited from giving opinions to anyone except the Governor and the heads of the various departments of State, and then only upon matters in which the State is involved. Therefore, anything that I may say in reply to your letter is to be considered purely as information and not :binding upon anyone in any manner whatsoever.
I know of no statute which provides that a school girl must wear shorts to practice "physical education", however, therE:' may be some rule or regulation promulgated by the local school system requiring such, which would of course be subject to review.
The administration of the public schools is by law placed in the hands of the County and City Boards of Education, and the State Department of Edu.cation. The procedure where a dispute arises would be to present the matter in writing to the superintendent of the school in question, requesting a hearing and :a decision, and if dissatisfied with his or her ruling, then to the City or County Board of Education in which the question is involved, and if dissatisfied with their decision, it m,ay be appealed to the State Superintendent of Schools for final determination.
I am enclosing a copy of the latest edition of the Georgia School Laws, which may .he o.f help to you.
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EDUCATION-Contracts The clause providing for 90-day notice of termination contained in text book contracts is valid.
July 12, 1948 Honorable M. D. Collins State Superintendent of Schools
I have your letter of July 2, with enclosed copy of a form contract for the purchase of textbooks by the State, in which you request my opinion on the interpretation of the "Ninety Day Clause" in the contract. The clause in question is as follows:
"Either party to this contract is hereby given the right to terminate same by giving written notice to the other party of its desire so to terminate same on or by March 1st of each year. Provided that each and every term and obligation of said contract shall remain in full force and effect until the expiration of ninety days from the date of service of such notice of intention or desire to terminate. And provided further that neither party shall have the right to give notice of intention to terminate this contract after March 1st of any calendar year."
It is my opinion that this clause is a valid and binding one if the contract is properly executed by authorized parties. It gives to both parties to the contract the right to terminate same by giving written notice of such intention to terminate on or before March 1st of the calendar year. After March 1st of any calendar year in the life of the contract, the contract may not be so terminated.
In the event that proper notice of intention to terminate is served on either party prior to March 2nd in any calendar year, the contract continues in force for ninety days after service of such notice on the other party. For example, if the notice of intention to terminate should be served upon a party to the contract on February 15, the contract would continue of full force and effect for ninety days thereafter.
If notice of intention to terminate should be served on either party on March 2, or any day thereafter, of any calendar year during the life of the contract, such notice would have no legal operation whatsoever. In short, the clause in question may be utilized only between January 1 and March 1 of any year.
EDUCATION-County Boards (Un,official) The County Board of Education has the power to use school buses to transport school children to and from public school athletic contests.
January 5, 1948
Honorable Hubert L. Dyar, Editor The Royston Record
Your letter of December 16th received. I regret very much that there has been a delay in answering your letter. The delay was brought about due to the fact that other pressing State affairs called for our full attention. You requested that I construe Section 2 of the Act approved March 28, 1947, relating to the use of school buses, and to advise whether or not school buses could
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be used for the purpose of transporting school children to ball games, or other educational activities.
I desire to call your attention to the fact that under the law I am not permitted to render any official opinion unless requested to do so by the Governor or one of the heads of the different departments of the State, and even then the opinion must be based upon some issue involving State affairs. The questions asked by you in your letter involve the administration of county affairs, since the county board of education is the agency of the county which administers school affairs for the county.
Notwithstanding the above stated restrictions as a matter of information, I am going to give you my private view on the question asked, with the understanding that it does not bind anyone. Section 2 of the Act under consideration provides as follows:
1"Section 2. County boards of education are hereby authorized and given power to purchase motor vehicles and other equipment for the purpose of transporting pupils and school employees to and from the public schools, to em[ploy drivers and provide for the operation and mll.intenance of such equipment. County school boards are hereby authorized to expend money out of school funds for the purchase of such school transportation equipment and to repair, maintain, and operate same." (Georgia Laws 1947, p. 1462.)
Under this Section county boards of education are authorized and given power to purchase motor vehicles for the purpose of transporting pupils and school employees to and from the public schools. Title to school buses or other school property acquired by the county school systems would, by virtue of Section 32-909 of the Code, vest in the county boards of education, and should, in my opinion, be construed in connection with Section 2 of the 1947 Act. The Code Section provides in part as follows:
"The said boards are invested with the title, care and custody of all schoolhouses or other property with power to control the same in such manner as
they think will best serve the interest of the common school * * *."
Construing the Section of the Code and the Section of the Act together, 1 am of the opinion that the county board is not restricted to the technical use of school buses for transporting pupils and school employees to and from
the public schools. I am of the opinion that the county board would hc.ve t:c,
right to use the school buses for school purposes which serve the interest of the common schools. I do not think that they would have the right to use school buses for any purposes which would not serve the interest of the common school.
I do not find any statutes providing for athletics as a part of the common school activities, and it is common knowledge that such athletics activities are eontrolled and operated under public school athletic associations, which work in harmony with the public school systems of the State. On the other hand, it is a well known fact that the teacher, or teachers, who coach common school pupils in athletic activities, and who manage and control public school games and participants in different activities, are paid from State and county public school funds, and while there are no statutes which specifically authorize the same, it is considered a part of the public school activities.
I am, therefore, of the opinion that under Section 32-909 of the Code the .county board of education would have the right and power to use school buses
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for the purpose of transporting school children to and from athletic contests participated in by the public schools of the State, or for such other educational programs adopted and used by the public schools for the purpose of educating the school children.
As stated above this letter constitutes only my private opinion, and is not binding upon anyone.
EDUCATION-County Board (Unofficia:l) Sets out terms of office o{ C~unty Boards of Education.
February 9, 1948 Mr. J. Hadley Ruling
This will acknowledge receipt of your letter of February 3, 1948, requesting that I advise you who requested the ruling from this office concerning the terms of office of the Harris County Board of Education.
The law prohibits me fromgiving an official opinion to anyone except the Governor and the heads of the various departments of the State government. Therefore, anything that I may say in reply to your letter is to be considered unofficial and purely as information and not binding upon anyone in any manner whatsoever.
My records do not disclose that any official opinion has been rendered specifically covering the Harris County Board of Education, however, on August 29, 1945 I gave an official opinion to Dr. M. D. Collins, State Superintendent of Schools, which generally covers the terms of office of all County Boards of Education of the State since the adoption of the 1945 Constitution making County Boards of Education constitutional offices.
I am attaching hereto a copy of this opinion for your information. I am also attaching a copy of the decision of the Supreme Court of Georgia in the case of Powell vs. Price, 201 Ga. p. 833, wherein it is held:
"County Boards of Education were not abolished by the Constitution of 1945; they were given a constitutional rather than statutory status. Consequently, a Grand Jury convening next after the adoption of the Constitution was without authority to elect a successor to a member of the county board of education whose term had not then expired. Code (Ann. Supp.), Section 2-8006."
As a matter of information for you, I inquired of the State Department of Education and ascertained that the terms of Mr. B. W. Williams expires on April 30, 1948; H. B. Kimbrough, April 30, 1948; and E. F. Hall, April 15, 1948.
August 29, 1945 Dr. M. D. Collins State Superintendent of Schools
This acknowledges receipt of your letter of August 23rd, in which you refer to an opinion rendered by my honorable predecessor, T. Grady Head, relative to county board of education members. On August 14th, you propounded to Judge Head the following questions:
"Will the Grand Jury have to select five members; one for one year, one for two years, one for three years, one for four years, and one for five years? Or will the present members continue to serve until the terms for which they were selected expire?"
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Judge Head answered your letter by referring you to Article 12, Section 1, Paragraph 6 of the Constitution as amended. In your letter of the 23rd, addressed to me, you propounded the following question:
"How will county board members finally be selected on the one, two, three, four and five year basis respectively unless we start 'from scratch'? In other words when a board member's time is up, should he be elected for one, two, three, four or five years, and what if two or three members' time is up at once?"
Amendment to the Constitution No. 1 voted on August 7, 1945, did not technically make the Constitution of the State a new Constitution, but constituted it the Constitution of 1877, as amended. Prior to August 7, 1945, and the proclamation of the Governor on August 13, 1945, the Constitution of 1877, did not name members of the board of education as public constitutional officers. The office of members of the board of education existed as a statutory office by virtue of an Act of the General Assembly (Acts 1919, p. 320). Under the Act of 1919 (Code Sections 32-901 and 32-902) each and every county was composed of one school district, which was confided to the control and management of a county board of education, which board of education was. selected by the Grand Jury from the citizens of the counties and constituted five. They were to be freeholders of the county. The term of their office was,; for a period of four years and until their successors are elected and qualified.
The statutory county board of education as provided for in the Act of 1919, commonly known as the School Act, was incorporated in the Constitution of 1877 as amended by the adoption of the people on August 7 and proclaimed by the Governor on August 13, 1945. Paragraph 1, Section 5 of Article 8 establishes the county board of education as a constitutional office in the following language:
"Each county, exclusive of any independent school system now in existence in a county, shall compose one school district and shall be confined to the control and management of a county board of education. The Grand Jury of each county shall select from the citizens of their respective counties five freeholders, who shall constitute the county board of education."
The Constitution as amended changed the statutory term from four to five years and provides that the first board selected after the adoption of the Constitution shall be elected with terms expiring so that one member shall be named as successor every year. The first question to be determined is whether or not the members of the board of education now in office under commission issued under the statutory office to remain as members of the board of education for the term for which they were selected by the Grand Jury acting under their statutory authority. I construe Judge Head's letter of August 16th to hold that the present members of county boards of education are to remain in office under their appointment under the statutory law until they have served the term for which they were elected. On August 9, Judge Head rendered an official opinion for Governor Arnall dealing with the terms of State officers and in his opinion makes the following statement:
"An officer or board already existing by statute which is for the first time incorporated in the Constitution by a provision not antagonistic to the existing statute in any material way continues to serve for the term appointed under the statute and, therefore, in such a case, no new appointment is required or permitted merely because the office or board is included in the Constitution."
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I agree with Judge Head in this statement and with his conclusion reached in his letter of August 16th where he ruled that the present members of the statutory board of education remain in office until the expiration of the term for which they were selected. I concur in his opinion because of the provision contained in Paragraph 6, Section 1 of Article 12 of the amended Constitution, which provides as follows:
"The officers of the Government now existing shall continue in the exercise of their several functions until their successors are duly elected or appointed and qualified. But nothing herein is to apply to any officer, whose office may be abolished by this Constitution."
I also agree for the further reason that the Constitution as amended did not abolish the statutory office, but the adoption of the Constitution providing for the same office and the same manner of appointment continued the office of members of the county board of education. I do not find any direct Georgia authority to support this conclusion. It was held in Fort v. Boyd County by the Supreme Court of Nebraska, 197 N. W., 953, that:
"Where a person is appointed to an office, pursuant to the provisions of a statute then in force authorizing such appointment, and during his incumbency of the office the statute is repealed, but like provisions for the appointment are contained in the repealing act, no reappointment of such official is necessary, since the re-enactment of the old law into the new is, in effect, a continuation of the law under which he was appointed."
It was held by the Supreme Court of this State in Drake, et al., commission,ers v. Hammond 129 Ga. 466, that an amendment to an act creating a city court which changed the method of selecting a judge and solicitor did not have the effect of ousting the judge and solicitor appointed for a definite term under the original act. The Constitution as amended adopting the statutory office of members of the county board of education did not provide that the statutory office should be abolished, or that the term of office of the present members should be changed in any way. It does provide that in the future members of the board of education shall be for a term of five years with the exception and proviso that the first members elected under this Constitution shall be elected in such a manner so that the term of office of one of the five will expire each year.
Under the proviso stated above it is my opinion that the present members of the county board of education are entitled to hold their office for the term of their appointment as previously made by the Grand Jury under the statutory authority.
The other question for consideration is the one contained in your letter of August 23rd, wherein you request that I advise how members may be selected so that the terms of office will expire one each year.
The Grand Jury of the county is the appointing power of officers to fill the membership of the county board of education. The Constitution does not name any time for the beginning or expiration of any member to be appointed to succeed the present membership of the county board of education. There is no statute fixing the date for the commencement or ending of the term of any member. The Grand Jury of the county, the appointing power under the statute and Constitution, is clothed with the power to fix the beginning and ending of the term of the first appointees made after the adoption of the Con-
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stitution and thereafter all subsequent terms are to conform with the beginning of the term of the first appointee. The courts of our State in a number of cases have declared that the appointing power is clothed with such power. See Talmadge, commissioner et ail. v. Cordell, vice ver'sa, 167 Ga. 594 (4).
Under the authority cited above it is my opinion that the Grand Jury should take into consideration the existing terms of the present members of their county boards of education and at the end of the terms for which they are commissioned make their appointment so as to put into effect the provisions of the Constitution that the term of one member shall expire each year. No perfect formula can be given which will apply to each county in the State. If the first member appointed after the adoption of the Constitution and the appointment is made during the present year to expire in 1950, the next appointment should be made to expire in 1951 and so on.
I trust that the above and foregoing will answer your questions relating to the appointment and terms of the members of the county boards of education and that you will be able to fully advise the school authorities on these matters.
POWELL vs. PRICE 201 Ga., p. 833
County Boards of Education were not abolished by the Constitution of 1945; they were given a constitutional rather than statutory status. Consequently, a grand jury convening next after the adoption of the Constitution was without authority to elect a successor to a member of the county board of education whose term had not then expired. Code (Ann. Supp.), Section 2-8006.
No. 15679. February 6, 1947. Quo warranto. Before Judge Camp. Johnson Superior Court. September 20, 1946. On July 22, 1946, Byron Price presented to the Judge of the Superior Court of Johnson County his petition for leave to file an information in the nature of quo warranto, and for the writ of quo warranto, against Samps L. Powell as a member of the county board of education. The petition and a stip~lation afterwards made showed that Powell had been duly elected to membership on the board by a Grand Jury at the September term, 1942, for a full term of four years, and that the relator had been elected to succeed Powell by a grand jury at the March term, 1946. Powell refused to relinquish the office, claiming that his term had not expired. The case is here for review on exceptions to a judgment ousting Powell from his office. W. C. Brinson, for plaintiff in error, E. L. Rowland, contra. Candler, Justice. (After stating the foregoing facts.) By their briefs counsel agree that the only question for decision is whether or not the Constitution of 1945 authorized a grand jury, convening in Johnson County next after its adoption, to reorganize the county board of education under art. 8, sec. 5, par. 1 (Code, Ann. Supp., Sec. 2-6801), by electing new members for the staggered terms therein provided for. In Wheeler v. Fargo School District, 200 Ga. 323 (37 S. E. 2d, 322), this court held that the Constitution of 1945, as it related to our Comprehens.ive School Law of 1919 (Ga. L. 1919, p. 288; Code, Sec. 32-901, et seq.), changed the status of our several county boards of education from statutory to constitutional boards. And we have held in Saxon v. Bell, 201 Ga. 797 ( 41 S. E. 2d, 536), that the Constitution of 1945 did not purport to disturb our comprehensive
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code of statutory school laws other than to make the offices of county school superintendent and county boards of education constitutional offices rather than statutory offices; and that a member of the board of education, whose term had not expired at the time of the adoption of the Constitution, was entitled to hold his office until his successor was elected and qualified. In this case the stipulation shows that the incumbent's term had not expired when the relator was elected as his successor; and the grand jury being without authority to select his successor, the court erred in its judgment ousting the incumbent.
Judgment reversed. All the Justices concur.
EDUCATION-County Board (Unoffici.al) Discusses management of schools by County Boards of Education.
February 13, 1948 Mr. Prince A. Hodgson
This will acknowledge receipt of your letter of February 2, 1948, and it was a pleasure to hear from you. Myself and Mrs. Cook appreciate your kind remembrance and regards.
Under the law, I am prohibited from giving opinions to anyone except the Governor and the heads of the various departments of State Government, and then only upon matters involving the State's interests. I mention this in order that you may appreciate my position in not being able to give you any opinion .on the questions mentioned in your letter. Anything that I may say in regard to your questions is to be considered purely as information and not binding upon anyone in any manner whatsoever.
Under the Constitution of 1945, and the Acts of 1946, (Ga. L. 1946, p. 206), known as the "Culpepper. Act", the county boards of education are vested with authority to manage and control the schools of the county. The Constitution of 1945 provided that each county should constitute one school district and the 1946 Act repealed a large part of the 1919 Act, and also provided that each county should constitute one school district which was confided to the care of the county board of education.
I would suggest that you read the "Culpepper Act", which can be found in the office of the Clerk of the Superior Court of your county, in what is known as Georgia Laws 1946.
Section 23 of the "Culpepper Act" provides that election for bonds to build school buildings should be called and held in the manner prescribed by Chapter 87-2 of the Code of 1933 and the bonds should be validated as provided by Chapter 87-3 of the Code of 1933. The two chapters, above referred to, set forth the method of procedure for the issuance and validation of county or municipal bonds. In the case of Nelms v. Stephens County S.chool District, 201 Ga. 274, the Supreme Court held that the county board of education is the proper authority to call, manage, consolidate and declare results of election held for purposes of incurring bonded indebtedness for building and equipping schoolhouses.
I would suggest that you read the Nelms case, which is on page 274 of the 201 Georgia Reports. This book can also be found in the office of the Clerk of the Superior Court of your county.
The 1946 "Culpepper Act", above referred to, was amended by Act No. 322
approved March 27, 1947, (Ga. L. 1947, p. 1186). Under this Act the county board of education was given power and authority to divide all of the territory of the county outside of independent school districts into local subdivisions to be known as local schoolhouse districts and to issue bonds for such local subdistricts.
However, on November 1'3, 1947, in the case of Davis v. Board of Ediu,cation of Coffee County, 45 S. E. 2 (d), p. 429, the Supreme Court of the State held that the above 1947 Act giving the county board authority to district the county for schoolhouse bond purposes was void on the ground that it was a local Act in conflict with the general law. I call this to your attention so that you will know that the 1947 amending Act is no longer of force and effect. Since this case is very recent and not reported in the Georgia Reports as yet, I am attaching hereto a copy for your information.
The question of transportation of pupils is covered by Code Section 32-919 of the 1933 Annotated Code and the cases cited in the annotations, and I would suggest that you read this Code Section, which vests considerable discretionary powers in county boards on transportation of pupils.
I wish it was possible for me to supply you with a copy of all the school laws with recent amendments at this time, however, I am informed that the State Department of Education will have, within the next ten days, a complete revision of the school laws in pamphlet form, which you could secure by writing to Dr. M. D. Collins, State Superintendent of Schools, when they are ready.
I would suggest that you read Chapter 32-901 through 32-948, and Chapter 32-1001 through 32-1135 of the 1933 Annotated Code and the Pocket Supplement thereto, and the "Culpepper Act" of 1946, above referred to, which will give you a good knowledge of the county boards and superintendents' duties, power and authority. More than likely you will find this Code in the office of the Clerk of the Superior Court, however, if he should not have one, I feel sure your county attorney would be glad to let you read his, and he may be of some assistance in explaining any provision of which you may not be able to thoroughly understand.
I regret that I am unable to be more specific to the questions which you propound, for the reason that the questions are local in their nature and involves local administration, facts and law, which does not come within the authority of the Attorney General, but does fall within the jurisdiction of the county attorney.
EDUCATION-County Board-Members 1. Except in DeKalb County members of the County Board of Education may succeed themselves. 2. Except in DeKalb County, members of the Board serving at the time the Constitution was amended may continue to succeed themselves.
February 13, 1948 Dr. M. D. Collins State Supe1intendent of Schools
This will acknowledge receipt of a copy of a letter to you from Mr. W. H. Kent, Superintendent of the Wheeler County Schools, and your memorandum thereon requesting an opinion from me on the three questions propounded in Mr. Kent's letter, which are:
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"1. Can county board members succeed themselves? "2. Can county board members who were serving at the time the Constitution was amended continue to succeed themselves? "3. Can county board members who were serving at the time the Constitution was amended, and who are now serving, continue to serve until their terms are up?" Questions 1 and 2 are answered in the affirmative, with the exception of DeKalb County, since there is no prohibition against a member of the County Board of Education being appointed to succeed himself, if otherwise qualified as provided by law. The DeKalb County prohibition against a member succeeding himself is contained in the Acts of 1943, (Ga. L. 1943, p. 271). Question 3 is answered by my opinion of August 29, 1945, which deals thoroughly with this question. I am attaching another copy of this opinion for your use in case you have misplaced your copy.
EDUCATION-County Board (Unofficial) Qualifications of member of County Board of Education.
March 31, 1948
Honorable Loren Gary, M. D. Acknowledging receipt of your letter of March 26, 1948, in which you
request information as to the qualifications required of a person to serve as a member of the county board of education.
Replying thereto, I wish to advise that the Attorney General of Georgia is not authorized, under the law, to give official opinions on any subject except when directed by the Governor or the heads of the several State Departments, therefore, you will understand that the information given herein is strictly personal and unofficial.
Under Section 5, Chapter 2-68, Paragraph 1 of the new Constitution reads in part as follows:
"The Grand Jury of each county shall select from the citizens of their respective counties five freeholders, who shall constitute the County Board of Education. Said members shall be elected for the term of five years except that the first election of Board members under this Constitution shall be for such terms that will provide for the expiration of the term of one member of the County Board of Education each year. In case of a vacancy on said Board by death, resignation of a member, or from any other cause other than the expiration of such member's term of office, the Board shall by secret ballot elect his successor, who shall hold office until the next Grand Jury convenes at which time said Grand Jury shall appoint the successor member of the Board for the unexpired term. The members of the County Board of Education of such county shali be selected from that portion of the county not embraced within the territory of an independent school district."
Section 32-902 of the Annotated Code of Georgia of 1933 reads as follows: "The grand jury of each county (except those counties which are under a local system) shall, from time to time, select from the citizens of their respective counties five freeholders, who shaJI constitute the county board of education. Said members shall be elected for the term of four years, and shaJI hold their offices until their successors are elected and qualified: Provided, however,
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that no publisher of schoolbooks, nor any agent for such publisher, nor any person who shall be pecuniarily interested in the sale of schoolbooks, shall be eligible for election as members of any board of education or as county superintendent of schools: Provided, further, that whenever there is in a portion of any county a local school system having a board of education of its own, and receiving its pro rata of the public school fund directly from the State Superintendent of Schools, and having no dealings whatever with the county board of education of such county shall be selected from that portion of the county not embraced within the territory covered by such local system."
Section 32-903 of the Annotated Code of Georgia of 1933 reads as follows: "The grand jury in selecting the members of the county board of education shall not select one of their own number then in session, nor shall they select any two of those selected from the same militia district or locality, nor shall they select any person who resides within the limits of a local school system operated independent of the county board of education, but shall apportion members of the board as far as practicable over the county; they shall select m,en of good moral character, who shall have at least a fair knowledge of the elementary branches of an English education and be favorable to the common school system. Whenever a member of the board of education moves his residence into a militia district where another member of the board resides, or into a district or municipality that has an independent local school system, the member changing his residence shall immediately cease to be on the board and the vacancy shall be filled as required by law." The Act of the General Assembly of 1947, page 682, provides that in counties having a population of not less than 5,910 and not more than 6,000, according to the United States Census of 1940. that it shall be lawful for the grand juries to select one or more members of the county board of education from any militia district or locality and th~:t the requirements of this Section, or wherever it may be so provided in the laws of this State that no two board members shall be selected from the Eame militia district or locality will not apply in said counties.
EDUCATION-County Board (Unofficial) An action by or against a Board of Education must be brought in the names of its members, acting as a Board of Education.
April 22, 1948
Mr. Dewey T. Ashby
This will acknowledge receipt of your letter of April 19, 1948, in which
you quoted a newspaper item in regard to the recent ruling of the Georgia
Supreme Court in the Board of Education of Haralson County case.
While I have not had the opportunity to thoroughly study this case, due
to the fact that no printed copies are available as yet, I have made a prelimi-
nary investigation, and find that the Supreme Court said that an action brought
in the name "Board of Education" was not sufficient; that it should be brought
in the name of the members of the Board of Education acting as the Board of
Education. Likewise, an action against the Board should be in the same manner.
It has always been the law in Georgia.
,
Of course, you understand that the Attorney General can not give an
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official opinion to anyone except the Governor and the heads of the various Departments of the State, and then only upon matters in which the State is involved. Therefore, anything that I have said in this letter is to be considered purely as information and unofficial, and not binding upon anyone in any manner whatsoever.
EDUCATION-County Boar'd (Unofficial) A County Board of Education may require vaccination as prerequisite to admission to schools.
April 27, 1948 Honorable Hubert F. Rawls Attorney at Law
I have you:r letter of April 17 in which you request my opmwn as to whether or not the Board of Education of Brantley County may require that all students take typhoid shots.
As you know, I am prohibited by law from rendering official opinions to anyone except the Governor and heads of the various State departments, therefore, the following remarks are entirely personal, unofficial, and not binding on anyone.
Georgia Code Ann. Sec. 32-911 provides as follows: "The boards of education of each county mray make such regulations as in their judgment shall seem requisite to insure the vaccination of the pupils in their respective schools and may require all scholars or pupils to be vaccinated as a prerequisite to admdssion to their respective schools." The word "vaccination" is synonymous with inoculation. See 43 Words and Phrases, page 640. It would seem, therefore, that the Board of Education does have the requisite authority. See also Georgia Code Ann. Sections 32-1801, 88-203, and 88-417.
EDUCATION-County Boar'd (Un,official) The control and management of county schools is in the County Board of Education, and therefore funds received for recreational facilities should be turned over to that Board.
April 30, 1948 Hon. T. A. McCord, Mayor
I am pleased to acknowledge your letter of April 20th, in which you state that the Board of Water and Light Commissioners of Fort Valley by resolution had agreed to furnish $75,000.00 to the Mayor and Council for the erection of a combination recreation center and basketball court, said funds to be used to supplement funds available to the Board of Trustees of the Fort Valley Consolidated School District. You desire to know whether these funds can legally be remitted to the Trustees of a consolidated school district, or if it would be better for this fund to be turned over to the County Board of Education for the purposes specified.
Section I of the Act approved March 6, 1945, (Ga. Laws 1945, pp. 8&'5 to
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888) provides as follows: "On and after the passage of this amendment to the Charter of the City
of Fort Valley, the Mayor and Council of said city with the approval of the Board of Water and Light Commissioners may use, expend or invest revenue derived from the operation of utilities under the said Water and Light Commission of said city for any cause or purpose in promotion of the common welfare of said city or its citizens, and for this purpos.e may use the revenue derived from the operation of such utilities to supplement the funds available for the Fort Valley Consolidated School in said city, and for such other purpose or purposes as the Mayor and Council and the Water and Light Commission may determine."
The above provision of law seems to be clear as to the authority of the Mayor and Council to employ the funds for the purposes stated in your letter. The question of whether the funds should be turned over to the trustees or to the County Board of Education for the purposes specified, presents a question which may be answered by Paragraph 1 of Section 5 of Article 8 of the State Constitution, which reads in part as follows:
"Authority is granted to counties to establish and maintain public schools within their limits. Each county, exclusive of any independent school system now in existence in a county, shall compose one school district and shall be confined to the control and management of a County Board of Education. . . .
"The General Assembly shall have authority to make provision for local trustees of each school in a county system and confer authority upon them to make recommendations as to budgets and employment of teachers and other authorized employees."
Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions on local questions such as the one now under consideration. I am very glad however, to refer you to the above provisions of law with the hope that the same may give you the desired information. It would be my suggestion that this matter be presented to your county attorney, since he will be in a position to officially advise you in the premises,
EDUCATION-County Board (Unofficial) A County Board of Education may pay its part of street or sidewalk paving in a municipality provided the cost is paid on an assessment basis.
May 4, 1948 Mr. W. P. Sprayberry, Superintendent Cobb County Schools
My assistant, Mr. Ed Dorsey, has referred to me your letter of April 2f3 in which you request my opinion on the following question:
Has the Cobb County Board of Education legal authority to pay its prorata part of street or sidewalk paving in a municipality when said cost is being paid for on an assessment basis? The schools involved are under the jurisdiction of the Cobb County Board of Education.
As you know, I am prohibited by law from rendering official opinions to anyone except the Governor and heads of the various State departments, therefore, the following remarks are entirely personal, unofficial, and not binding on auyone.
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Georgia Code Annotated, Section 32-909 states in part as follows: "The county boards of education shall have the power to ... build, repair, or rent school houses ... and make all arrangements necessary to the effective operation of the schools." Under the above provisions, it seems to me that such an expenditure as you have set out in your question, if approved by the Board, would be legally authorized.
EDUCATION-County Board (Unofficial) A County Board of Education having two bonded school districts has the authority to send children from one district to the other.
May 21, 1948
Honorable Lon L. Fleming, Superintendent
Department of Education, McDuffie County
I have your letter of April 26, in which you request my opm10n on several
questions relative to the powers of the McDuffie County Board of Education.
I regret that the pressure of other affairs has forced me to delay answering
your letter until now, but as I previously wrote you, I have been forced to
spend a good deal of time recent!y out of my office.
As you know, I am prohibited by law from rendering official opinions or
advice to anyone other than the Governor and heads of the various State
departments, however, I am always glad to assist you in any way possible,
even though the following remarks are necessarily personal and unofficial.
You state that there are two bonded school districts in McDuffie County,
one of which, the Dearing district, does not have sufficient enrollment to make
its operation efficient, and that it is desired to send some of the children living
in the present Thomson district to the Dearing district. You have then stated
the following questions:
1
1. Does the McDuffie County Board of Education have the authority to
require and send the children living in that portion of the Thomson bonded
district to the Dearing School?
2. If so, can the people living in the portion of the Thomson bonded district,
after this portion is officially made a part of the Dearing school be required
to pay the bond tax to the Thomson bonded school district?
3. If the board has the authority to redistrict the Thomson bonded school
district, would it be in order to have the bonded tax in this portion of the
Thomson district returned in the Dearing bonded tax district and have the
taxpayers in that portion pay to the Dearing district?
In answer to Question 1, I invite your attention to Georgia Code Annotated,
Section 32-909, which reads in part as follows:
"The County Boards of Education shall have the power to ... make all
arrangements necessary to the efficient operation of the schools."
It is my opinion that the above quoted statute is sufficient authority for a
Board of Education to arrange and delimit attendance areas in the county of
its jurisdiction, excluding of course independent school districts within such
county.
Reliance on the general powers contained in the above quoted Section is
necessitated by the recent changes in our school laws. As you know, the 1945
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Constitution (Article VIII, Section V, Paragraph I, Ga. Code Ann. Sec. 2-6801) provides that:
"Each county, exclusive of any independent school system now in existence in a county, shall compose one school district and shall be confined to the control and management of a County Board of Education."
In 1946 the General Assembly of Georgia enacted a statute conforming the school laws to the new Constitution (Ga. Laws 1946, p. 209, Ga. Code Ann. Sec. 32-1101). Then in 1947 the General Assembly enacted a statute intended to provide County Boards of Education with the authority to divide the county outside of independent school systems into local subdivisions to be known as local school house districts, and providing for the issuance of bonds for such local subdivisions. (Ga. Laws 1947, p. 1186). However, on November 13, 1947, the Supreme Court of Georgia declared this 1947 Act to be unconstitutional and invalid (Davis v. Board of Education of Coffee County et al. Ga. 45 S. E. 2d, p. 429). This decision nullifies the effect of the 1947 law and therefore returns us to the law in effect prior to the enactment of the 1947 statute.
As you will see, there is at present no power or authority vested in County Boards of Education to change or rearrange school districts. However, as I have stated above, it is my opinion that under the general regulatory powers granted County Boards of Education by Code Section 32-909, the County Boards may designate which schools pupils from various localities in the county shall attend, since such authority is certainly inherent in the Boards' right to "make all arrangements to the efficient operation of the schools."
This general authority is not in my opinion sufficient to authorize the Board to make any changes in the method of payment of any pre-existent debt. That is, the general power granted the Boards to operate the schools efficiently is not sufficient to permit the Boards to change the contractual obligations between persons in a county which has issued bonds and the bondholders.
Therefore, I am not at this time attempting to answer your second and third questions: I cannot, of course, predict what action the next General Assembly will take, but it seems to me extremely advisable that the Act of 1947 should be re-enacted in such a way as to give it general application, and therefore make it constitutional.
EDUCATION-County Board 1. A County Board of Education may accept conveyances of land and buildings and may, if the buildings are unsuited to the purpose, convey the property to a private citizen who agrees to construct certain school buildings on the land. 2. A lease to the Board of Education for f~ve years with provision for purchase at the end of that time is not within the powers of the Board.
May 24, 1948 Dr. M. D. Collins State Superintendent of Schools
I have your letter of April 24 in which you enclose a letter from the Honorable A. B. Conger, of Bainbridge, together with copies of documents showing certain proceedings of the Miller County Board of Education.
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You request my opmwn as to the legality of the following method of the procuring of a school building by a County Board of Education:
The United States Government or another source conveys to the Board certain buildings and land; the buildings and land are in turn conveyed to a private citizen who agrees to construct certain school buildings on the land. The private citizen and the Board enter into a contract under which the Board agrees to lease the school building for five years and at the expiration of that period to buy the building, the individual agreeing to sell at that time. The sale price is to be the actual money invested by the private individual less rent and other expenditures made by the Board. 1
As Mr. Conger has pointed out, the authority of County Boards of Education is found in Code Section 32-909, which reads in part as follows:
"The county boards of education shall have the power to purchase, lease,
or rent school sites; build, repair or rent school houses . . '.. and make a:H ar-
rangements necessary to the efficient operation of the schools. The said boards are invested with the title, care and custody of all school houses or other property ... with power to control the same in such manner as they think will best serve the interests of the common schools; and when, in the opinion of the board, any school house site has become unnecessary or inconvenient they may sell the same in the name of the county board of education; ..."
It is clear that this Section was intended by the Legislature to constitute a plenary grant of authority, and it is with this intent in mind that we must construe the statute. Patently the Board may acquire the land and buildings from the Government or other source, either by purchase or acceptance of a gift. The question for determination here is whether or not the Board is authorized to sell the property to the private citizen.
The plenary power granted to the Board to "make all arrangements necessary to the efficient operation of the schools" seems to be restricted somewhat when it is to be exercised for the purpose of selling school houses or other property. The Board may sell schoolhouse sites "when in the opinion of the Board ... (the) site has become unnecessary or inconvenient." The determination of whether or not the site has become unnecessary or inconvenient is left entirely to the opinion of the Board. After due consideration, it is my opinion that such determination is entirely a discretionary matter and unless the Board flagrantly abuses such discretionary power, it may be used as they see fit. If the Board after having bought or accepted a schoolhouse site should then form the opinion that the site is unnecessary or inconvenient, they might then sell the site to any individual. The fact that the buildings as received from the Government or other grantor are unsuitable for school purposes would seem to justify an opinion by the Board as to their being inconvenient for school purposes. I do not feel that a sale of such property after it has been determined to be inconvenient would in any way violate the terms or spirit of the statute in question, even though such sale might be made to implement a long term plan for construction and eventual purchase of a new school house.
Having determined that the Board may properly proceed to buy the site and then sell it, we must now determine whether or not a long term lease with an agreement to buy at the end of five years is authorized under the law. I invite your attention to Code Section 32-928, which states:
"It shall be unlawful for any board of education to make any contract
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involving the expenditure of funds in excess of the total appropriation for the current fiscal year. Any indebtedness created, contract made, or order or draft issued in violation thereof shall be void."
It seems most probable that a five year lease with a contractual obligation to purchase at the end of such lease would create an obligation involving expenditure of funds in excess of the total appropriation for any current fiscal year. I do not see how the contract could be made a severable one so that the annual contractual obligation might be retired by the annual appropriation, and still have the long term features of the contract be valid and binding on all parties.
Further, such a contract brings up the extremely difficult and vital question of whether or not this contract would not serve to bind the membership of future Boards of Education of the same county. I have always felt that this Section was designed to prohibit a County Board from binding its successors. The fact that the original statute was amended to permit such Boards to make four year contracts for transportation seems to me to bear out this construction. However, I am extremely hesitant to flatly state that the plan as suggested is not possible for this reason. I therefore suggest that a different method be used for the rental and eventual purchase of the proposed new building.
It seems to me that there are several available methods for doing this and I am sure that the Board in question and its extremely able counsel may after due consideration determine an alternate method which will not be fraught with the possibility of illegality.
EDUCATION-County Board-Member 1. The Constitutional provision for reorganization of County Boards contemplated de novo appointment, and members with unexpired terms may be appointed for full terms. 2. Such appointments will be valid even though no commissions are issued.
June 2, 1948 Dr. M. D. Collins State Superintendent of Schools
I have your letter of May 13 in which you request my opinion on the following situation:
In April 1946 the Grand Jury of Union County reorganized the County Board of Education setting the terms of the five members as required in the Constitution of 1945. Two of the members of the old Board had two years remaining in their terms, specifically, until May 31, 1948. The Grand Jury, however, reappointed them to the Board and set their terms for four and five years respectively, making the expiration dates 1950 and 1951. No new commissions were issued for these members at that time because their terms were not expiring. The April 1948 Grand Jury did not recognize the appointments of the 1946 Grand Jury but instead appointed two new members. You request my opinion as to which of the appointees to recognize.
Article VIII, Section V, Paragraph I of the Constitution of 1945 (Ga. Code Ann. Sec. 2-6801) states in part as follows:
"The Grand Jury of each county shall select from the citizens of their respective counties five freeholders, who shall constitute the County Board of
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Education. Said members shall be elected for the term of five years except that the first election of Board members under this Constitution shall be for such terms that will provide for the expiration of the term of one member of the County Board of Education each year."
It seems to me to be obvious that it was the intention of the_ framers of the 1945 Constitution to provide for a reorganization of all County Boards of Education, and it is my opinion that the words "the first election of Board membem under this Constitution shall be for such terms that will provide for the expiration of the term of one member . . . each year" clearly imply that the Grand Juries of the counties were required to reorganize and rearrange the terms of the members in accordance -with the scheme set out in this Section, at the first Board election after the Constitution took effect. Apparently this is exactly what the Union County Grand Jury did, and I am quite definitely of the opinion that their action was entirely legal and binding.
The de novo appointment of two members of the Board to serve full terms certainly would not be invalidated by the fact that they had been members of the old Board and had some time to serve on their unexpired terms. The Constitution of 1945 called for a reorganization of the County Boards. It did not set out in detail the method by which the reorganization was to be made, but it clearly did contemplate that de novo appointments should be made to conform to the requirements of the Section. This having been done and the appointees being otherwise qualified, a later Grand Jury would seem to be without authority to make additional appointments since no vacancies exist.
The fact that no new commissions were issued at the time of the 1946 appointments is not such a deficiency as to invalidate the appointments or decrease the terms of the appointees. The issuance of commissions to public officers is merely a ministerial act and not one which is legally operative to grant or deny an office. I do suggest, however, that commissions be issued to the appointees in question to conform to their terms, if your practice makes it advisable.
In summation, it is my opinion that the Board members appointed by the 1946 Grand Jury were, under the facts as stated, legally appointed and will hold office until the expiration of their terms as granted. The purported appointees of the 1948 Grand Jury have not been legally appointed due to the fact that there are no existing vacancies for them to fill.
EDUCATION-County Board (Unofficial) A County Board of Education may mortgage school buses to retire debt;; of the county school system.
June 4, 1948 Honorable Lovejoy Boyer Pulaski County Attorney
I have your letter of May 5 in which you request my opinion on the following question:
Has the County Board of Education the right to mortgage county school buses to secure loans, the proceeds of which are to be used to retire existing debts of the county school system.
As you know, I am prohibited by law from rendering official opinions to
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anyone except the Governor and heads of the various State departments, therefore, the following remarks are entirely personal, unofficial, and not binding on anyone.
Code Section 32-909 states in part as follows: "The county boards of education shall have the power to . . . make all arrangements necessary to the efficient operation of the schools. The said boards are invested with the title, care and custody of all schoolhouses or other property, with power to control the same in such manner as they think will best serve the interests of the common schools; ..." Code Section 32-921 states: "The county boards of education of the several counties of this State shall have the power and authority whenever they deem it necessary to borrow sufficient amounts of money, and no more, to pay for the operation of the public schools of their counties: . . ." Inasmuch as the county boards of education are vested with the title and control of all school property and have been granted the power to borrow money, it seems to me that these plenary grants of authority are sufficient to authorize the Board to use the school property as they may see fit. I do wish to point out, however, that school land, buildings and furniture are exempt from levy and sale under any execution or other writ under the provisions of Georgia Code Ann. Sec. 32-943. Inasmuch as school buses are not covered by this Section, they would not seem to be benefited by the exemption from levy and sale, and would therefore s~em to be usable as collateral.
EDUCATION-County Board (Unofficial) 1. The Constitutional limitation on county loans limits the amount the County Board may borrow. 2. The County Board may borrow money for the operation of schools and pledge State appropriations therefor.
June 8, 1948 Mrs. S. C. Patterson Clinch County Board of Education
I have your letter of May 18 in which you request my opinion on the following questions:
1. What effect does the constitutional limitation on county loans have on loans made by the County Board of Education?
2. May a County Board of Education borrow money for the operation of the county schools and pledge State funds, such as the equalization fund, towards the repayment of the loan?
As you know, I am prohibited by law from rendering official opinions to anyone except the Governor and heads of the various State departments, therefore, the following remarks are entirely personal, unofficial, and not binding on anyone.
As to Question 1 above, the Constitution of 1945 provides as follows: "... each county ... is given the authority to make temporary loans between January 1st and December 31st in each year to pay expenses for such year, upon the following conditions: The aggregate amount of all such loans of such county ... outstanding at any one time, shall not exceed seventy-five
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per centum of the total gross income of such county . . . from taxes collected by such county ... in the last preceding year." (Constitution of 1945, Article 7, Section 7, Paragraph 4, Ga. Code Ann. Sec. 2-6004).
As you have pointed out, the above provision of the Constitution does limit the amount which the County Board may borrow and this provision is, of course, still in effect.
As to Question 2 above, Georgia Code Annotated, Section 32-921 provides as follows:
"The county boards of education of the several counties of this State shall have the power and authority whenever they deem it necessary to borrow sufficient amounts of money, and no more, to pay for the operation of the public schools of their counties: Provided, that no board of education shall have authority under this law to borrow a sum of money greater in the aggregate than the sum which the county board of education may be entitled to receive from the State appropriation and from taxes levied for educational purposes during the year in which such loan is made."
It is my opinion that the right of a County Board of Education to pledge State appropriations for an advance loan is impliedly recognized by the above Section. Further, there is no statute which prohibits such a pledge of State appropriations by the County Board for the purpose of making a loan "to pay for the operation of the public schools of their counties."
It is therefore my opinion that a County Board of Education may borrow money and pledge the State funds which it is entitled to receive towards the repayment of such a loan.
The State Board of Education enacted a regulation sometime back which provides that when the county receiving equalization funds from the State does not meet its salary obligations to teachers, further paym.ent of equalization funds will be held up until such obligations are met by the County Board. This regulation could operate to halt the payment of the equalization fund if salary obligations to teachers were not met, but it does not prohibit the pledging of State appropriations by a County Board for a loan if the loan is otherwise authorized.
EDUCATION-County Board 1. The Constitutional limitation on county loans limits the amount the County Board may borrow. 2. The County Board may borrow money for operation of its schools and pledge the State funds which it is entitled to receive.
June 11, 1948 Dr. M. D. Collins State Superintendent of Schools
I have your letter of June 9, in which you request an official opinion on the questions presented to me by Mrs. S. C. Patterson, Clinch County Superintendent of Schools. I am most pleased to render this opinion to you. The questions presented were:
1. What effect does the constitutional limitation on county loans have on loans made by the County Board of Education?
2. May a County Board of Education borrow money for the operation of
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the county schools and pledge State funds, such as the equalization fund, towards the repayment of the loan?
As to Question 1 above, the Constitution of 1945 provides as follows: " ... each county ... is given the authority to make temporary loans between January 1st and December 31st in each year to pay expenses for such year, upon the following conditions: The aggregate amount of all such loans of such county ... outstanding at any one time, shall not exceed seventy-five per centum of the total gross income of such county . . . from taxes collected by such county ... in the last preceding year." (Constitution of 1945, Article 7, Section 7, Paragraph 4, Ga. Code Ann. Sec. 2-6004). The above provision of the Constitution does limit the amount which the County Board may borrow and this provision is, of course, still in effect. As to Question 2 above, Georgia Code Annotated, Section 32-921 provides as follows: "The county boards of education of the several counties of this State shall have the power and authority whenever they deem it necessary to borrow sufficient amounts of money, and no more, to pay for the operation of the public schools of their counties: Provided, that no board of education shall have authority under this law to borrow a sum of money greater in the aggregate than the sum which the county board of education may be entitled to receive from the State appropriation and from taxes levied for educational purposes during the year in which such loan is made." It is my opinion that the right of a County Board of Education to pledge State appropriations for an advance loan is impliedly recognized by the above Section. Further, there is no statute which prohibits such a pledge of State appropriations by the County Board for the purpose of making a loan "to pay for the operation of the public schools of their counties." It is therefore my opinion that a County Board of Education may borrow money and pledge the State funds which it is entitled to receive towards the repayment of such a loan. As you know, the State Board of Education enacted a regulation sometime back which provides that when the county receiving equalization funds from the State does not meet its salary obligations to teachers, further payment of equalization funds will be held up until such obligations are met by the County Board. This regulation could operate to halt the payment of the equalization fund if salary obligations to teachers were not met, but it does not prohibit the pledging of State appropriations by a County Board for a loan if the loan is otherwise authorized.
EDUCATION-County Board A County Board may not exceed the Constitutional limitation when pledging anticipated State; funds as collateral for a loan.
June 15, 1948 Dr. M. D. Collins State Superintendent of Schools
One June 11, 1948, I rendered an official opmwn to you on two qu2stions presented by Mrs. S. C. Patterson, Clinch County Superintendent of Schools. Apparently some question has arisen as to this opinion, and in order that
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there may be no question as to the proper interpretation of my opinion, I wish to add the following:
It is my opinion that the Constitutional limitation on the amount which a County Board may borrow (Constitution of 1945, Article 7, Section 7, Par. 4; Ga. Code Ann. Sec. 2-6004), applies to loans for which State funds are pledged as collateral. Therefore, a County Board may not exceed the Constitutional limitation when pledging anticipated State funds as collateral for a loan.
EDUCATION-County Board 1. County Boards of Education have a duty to maintain school buildings in good repair. 2. There is no requirement that the same proportionate amount of money be made available for maintenance of each school in the county system for each year. 3. The County Boards of Education have authority to borrow money for maintenance of school buildings based' upon current anticipated revenue and to execute notes therefor. 4. A County Board may deposit reserve funds for retirement of bonds with Building and Loan Associations to the extent covered by insurance with Federal Deposit Insurance Corporation.
August 9, 1948 Honorable J. I. Allman Assistant State Superintendent of Schools State Department of Education
I have your letter of August 2 bearing an enclosed letter from the Honorable L. D. Ewing, Secretary of the Board of Trustees, Norcross Consolidated Schools, in which he asks several questions. You request my official opinion on these questions, which are as follows:
1. Is it the responsibility of the County Board of Education to maintain all school buildings in the County System in a good state of repair?
2. Is the County Board of Education required to make the same proportionate amounts of money for maintenance available to each school in the County System every year?
3. Is the County Board of Education empowered to borrow money for maintenance of school buildings based upon anticipated revenue for the current year and what are the limitations?
4. Who has the authority to execute notes for borrowed money for maintenance and operation of county schools?
5. Is the County Board authorized to deposit Reserve Funds for the retirement of School District Bonds with Building and Loan Associations to the extent that such deposits are covered by insurance with the Federal Deposit Insurance Corporation?
In answer to Question 1, I call your attention to Georgia Code Annotated, Section 32-909, which provides as follows:
"The county boards of education ... are invested with the title, care and custody of all schoolhouses or other property, with power to control the same
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in such manner as they think will best serve the interests of the common schools; ..." (Underscoring supplied).
The above quoted Code Section clearly charges the County Boards of Education with the duty to care for school buildings and this requirement certainly would include the maintenance of school buildings in as good a state of repair as the facilities available to the Board permit.
As to Question 2, I find no legal authority which requires a County Board of Education to make the same proportionate amount of money for maintenance available to each school in the County System every year. This would seem to be a matter of administration rather than of legal duty. Should there be a flagrant abuse of the discretion granted the County Boards in this matter, there would be a legal remedy available to persons injured by such abuse.
As to Questions 3 and 4, see Gel)rgia Code Annotated, Section 32-921, which provides as follows:
"The county boards of education of the several counties of this State shall have the power and authority whenever they deem it necessary to borrow sufficient amounts of money, and no more, to pay for the operation of the public schools of their counties: Provided, that no board of education shall have authority under this law to borrow a sum of money greater in the aggregate than the sum which the county board of education may be entitled to receive from the State appropriation and from taxes levied for educational purposes during the year in which such loan is made."
The above Section was enacted in 1919 (Georgia Laws 1919 pages 288, 328, Section 95) under the sub-title "Borrowing to pay teachers".
In conflict with this sub-title, the body of the Section provided that the County Boards could borrow "to pay for the operation of the public schools of their counties" thus granting a much broader authority to the Boards to borrow money than was stated in the sub-title. The Section was amended in 1937 (Georgia Laws 1937, pages 880, 882), and the Section as amended was captioned "Power to borrow money" and there was no limitation by caption or otherwise, on the purposes for which the County Boards could borrow money other than the old provision which was "to pay for the operation of the public schools." Further, the 1937 amendment contained a repealer clause which repealed all laws and parts of laws in conflict with the amendment.
It is my opinion that the original Act of 1919 did not limit the purposes for which County Boards might borrow money to the single one of payment of teachers, for the general terms of the body of the Section clearly indicate a legislative intent to permit the County Boards to borrow for any purpose necessary "for the operation of the public schools."
However, even though it be deemed that the caption of the 1919 Act did limit the purposes for which a County Board could borrow money to that of payment of teachers, I am of the opinion that the amendment of 1937 clearly expresses a legislative intent to permit the County Boards to borrow for all purposes necessary for the operation of the public schools. Further, this legislative intent was implemented by a general repealer clause which repealed all laws and parts of laws in conflict with the 1937 Act. If it be found that the caption of the 1919 Act conflicts with the provisions of the 1937 Act, then the 1919 Act must fall.
A further limitation upon the authority of the County Boards to borrow
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money is found in the Constitution of 1945, which provides as follows: " ... each county ... is given the authority to make temporary loans
between January 1st and December 31st in each year to pay expenses for such year, upon the following conditions: The aggregate amount of all such loans of such county ... outstanding at any one time, shall not exceed seventy-five per centum of the total gross income of such county . . . from taxes collected by such county ... in the last preceding year." (Constitution of 1945, Article 7, Section 7, Paragraph 4, Ga. Code Ann. Sec. 2-6004).
In answer to Question 5, I find no statutory prohibition against depositing school funds in a Building and Loan Association, and it therefore seems to be within the plenary authority of the County Board of Education to do so.
EDUCATION-County Board (Unofficial) The County Board of Education is proper agency to determine use of timber on school property.
September 2, 1948 Mr. Banks Preston
I have your letter of August 25th in which you ask for information concerning the various powers of the Trustees of the local school district as opposed to those of a County Board of Education.
As you know, I am prohibited by law from rendering official opmwns to anyone except the Governor and heads of the various State departments, therefore the following remarks are entirely personal, unofficial, and not binding on anyone.
In 1946, the General Assembly reduced the powers of the Trustees of local school districts to those of an advisory nature, leaving them only the duty and power to make recommendations to the County Board of Education, which recommendations are not binding on the Board. (Ga. Laws 1946, pp. 206, 209, et seq.; Ga. Code Ann., Sec. 32-1104, 32-1105).
The title to all school property is vested in the County Board of Education. (Ga. Laws 1946, pp. 206, 207; Ga. Code Ann., Sec. 32-909).
It therefore seems that the proper agency to determine the use of timber on school property would be the County Board of Education. There is an exception for local school systems created prior to the adoption of the Constitution of 1877, but this does not affect your district, nor does the authority given to municipalities authorized by law to operate independent school systems affect your locality.
EDUCATION-County Board County school authorities may not collect fees from pupils in common schools for consumable material used in courses.
September 3, 1948 Hon. M. D. Collins State Superintendent of Schools
I have your letter of August 28 in which you request my opinion on the following question:
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May county school authorities legally collect a $2.00 fee from pupils in the common schools who take general science, chemistry, physics and biology for the consumable materials which the pupils use in connection with these courses which the State does not furnish or pay for?
The Constitution of 1945 provides that: "The provision of an adequate education for the citizens shall be a primary obligation of the State of Georgia, the expense of which shall be provided for by taxation. Separate schools shall be provided for the white and colored races." (Article 8, Section 1, Par. 1, Constitution of 1945; Ga. Code Ann. Sec. 2-6401). Georgia Code Annotated, Section 32-937 states: "Admission to all common schools shall be gratuitous to all children between the ages of six and 18 years residing in the districts in which the schools are located. . . ." There are numerous decisions of our appellate courts which state broadly that payment of matriculation, tuition or other fees may not be established as a condition precedent to the admission of any child to the common schools of our State. See Moore v. Brinson, 170 Ga. 680, and cases cited therein. In view of the above legal authorities, it is my opinion that county boards of education or other local school authorities are not legally authorized to impose or collect any kind of matriculation, library, tuition, supply, or other fee from students who are residents of the local school district for the purpose of supplementing public school funds derived from taxation. For a school to levy such fees and require payment as a condition precedent to admission to the school or to any classes in the school is in direct contravention to both the letter and spirit of our Constitution, statutes and decided cases, and in my opinion it is a practice which may not be countenanced by any agency charged with the education of the young people of our State.
EDUCATION-County Board (Unofficial) Members of the County Board of Education may not hold an elective office in the same county.
September 17, 1948 Honorable Philip F. Jones, Jr. Registered Professional Engineer
I am happy to receive your letter of September 14, 1948, in which you ask for the following information:
"As a member of the Clarke County Board of Education, an appointive office, I wish to know if I can legally hold an elective office in the same county."
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone other than the Governor and the heads of the various State Departments; therefore, this is an unofficial opinion and not binding upon anyone, as it reflects the writer's personal opinion only and is given you as a matter of information.
Georgia Code, 1933, Section 89-103, states: "No person shall hold, in any manner whatever, or be commissioned to hold at one time, more than one county office, except by special enactment of the legislature; nor shall any commissioned officer be deputy for any other commissioned officer, except by such special enactment."
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In Malone vs. MiiDic;hew, 170 Ga. 687, the Supreme Court held that a mem~ ber of the County Board of Commissioners of Roads and Revenues was a county officer, and in numerous other Supreme Court rulings a member of the Board of Education has been ruled to be a county officer.
EDUCATION-County Board 1. A County Board may expend tax money on repair and maintenance of leased property. 2. Whether it may so spend proceeds of bonds is dependent on purpose for which the bonds were voted.
September 21, 1948 Honorable M. D. Collins State Superintendent of Schools
I have your letter of August 19, in which you request my opinion on the following situation:
In an effort to effect the merger of a city school system with a county system, the city refuses to deed its school property outright to the County Board, but purposes instead a perpetual lease of said property containing a special insurance clause whereby the County Board would become the assured and entitled to collect all insurance for damage or destruction of property.
You wish to know whether or not the County Board can lE:gally spend tax or bond money for repairing, remodeling, rebuilding, equipping, or maintaining in any way said property under the above mentioned lease or a lease of any nature.
I have found no statutory prohibition against the expenditure of tax money for the improvement of property not owned by the taxing authority, that is, the county, or the subdivisions of the taxing authority, such as the County Board of Education.
I call your attention to Georgia Code Annotated, Section 32-909, which provides in part as follows:
"The county boards of education shall have the power to purchase, lease, or rent school sites; build, repair or rent school houses . . . and make all arrangements necessary to the efficient operation of the schools. The said boards are invested with the title, care and custody of all school houses or other property . . . with power to control the same in such manner as they think will best serve the interests of the common schools; and when, in the opinion of the board, any school house site has become unnecessary or inconvenient they may sell the same in the name of the county board of education; ..."
It would seem from the above Section that the County Board has the authority to lease school sites, and, in the absence of any statutory prohibition and in the presence of the plenary grant of authority to the County Boards of E<iucation, it is my opinion that the County Boards may expend tax money on leased property.
Whether or not funds raised by the issuance of bonds may be expended on leased property is entirely dependent upon the terms under which the bonds are issued.
I wish to call your attention to Georgia Code Annotated, Section 32-928 which is as follows:
"It shall be unlawful for any board of education to make any contract involving the expenditure of funds in excess of the total appropriation for the current fiscal year. Any indebtedness created, contract made, or order or draft issued in violation thereof shall be void."
The lease in question must, of course, conform to the requirements of the above quoted Section.
The instant question is somewhat similar to the question answered in my opinion to you of May 24, 1948, and I enclose herewith a copy of that opinion so that you may provide it to the interested parties.
EDUCATION-County Board The provision of the State Constitution authorizing the borrowing of money by counties, etc., authorized to levy taxes does not apply to County Boards of Education.
September 23, 1948 Honorable M. D. Collins State Superintendent of Schools
I have your letter of September 16, in which you request my opinion as to whether or not Article 7, Section 7, Paragraph 4 of the State Constitution is applicable to County Boards of Education.
The Section in question is, in part, as follows: "In addition to the obligations hereinbefore allowed, each county, municipality and political subdivision of the State authorized to levy taxes, is given the authority to make temporary loans between January 1st and December 31st in each year to pay expenses for such year, upon" certain stated conditions. (Ga. Code Ann. Sec. 2-6004) . Inasmuch as a County Board of Education is not authorized to levy taxes, it is my opinion that the Section in question does not apply to such Boards. Of course the Section will apply to Counties, and when a County makes a temporary loan for educational purposes the Section must be complied with, and therefore, it might be said that the Section in question indirectly affects the County Boards of Education. I call your attention to Georgia Code Annotated, Section 32-921 which authorizes County Boards of Education to borrow money within the terms of the Section, which Section is as follows: "The county boards of education of the several counties of this State shall have the power and authority whenever they deem it necessary to borrow sufficient amounts of money, and no more, to pay for the operation of the public schools of their counties: Provided, that no board of education shall have authority under this law to borrow a sum of money greater in the aggregate than the sum which the county board of education may be entitled to receive from the State appropriation and from taxes levied for educational purposes during the year in which such loan is made." You will recall that I discussed the provisions of this Section in my opinion to you dated June 11, 1948.
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EDUCATION-County Board The transportation of pupils from home to school is within the discretion of the County Board, and in a conflict between it and the Board of Trustees the County Board will prevail.
November 15, 1948
Dr. M. D. Collins State Superintendent of Schools
This will acknowledge receipt of your letter of October 18, 1948 enclosing letter of Mr. Robert H. Massey under date of October 14th. You request an official opinion upon the question propounded in Mr. Massey's letter, as follows:
"As between the County Board of Education of Gwinnett County and the Board of Trustees of Grayson School District, which body of school officials have the right to give direction to the school bus drivers?"
In your letter you do not state as to whether or not there is any contract between the Grayson School District and the Gwinnett County Board of Education concerning the transportation of pupils and, therefore, I presume that there is no such contract in existence.
The Supreme Court of Georgia in the case of Dougias ~s. Board of Edu- cation, 164 Ga. 271 (2) said:
"The transportation of pupils from their homes to the public schools of this State is a matter which rests within the discretion of the county board of education according to the circ*mstances of each particular case where such transportation is desirable, and the exercise of this discretion will not be interfered with unless there is a manifest abuse of discretion."
The Supreme Court of Georgia in the case of Down.er, truste.e, et al. v. Stephens, s,uperintend.ent, e1t al, 194 Ga. 598 (1) held:
"Authority for the operation of com;mon schools is by law vested in the county boards of education; and such authority in respect to the maintenance and operation of the schools as the law gives to school trustees, including those in districts levying a local tax, is subject to the authority of the county boards. The 1932 amendment of article 8, section 4, paragraph 1, of the constitution (Code Sec. 2-6901), authorizing county boards of education, independent school systems, and local school districts to make contracts with each other for the education, transportation, and care of children of school age, confers authority upon school district trustees to make such contracts subject to the existing law, and hence subject to the approval of the county board of education."
The SuprE;me Court of Georgia in the case of Keever et al, trustees., v, Board of Educa.tion of Gwinnett County et al, 188 Ga. 299 (1) (2) said:
"The management and control of the public schools of the county is confined to the county board of education, and it is the tribunal for hearing and adjudicating all local controversies relating to construing and administering the school law, and is given wide discretionary powers.
"In the exercise of its discretion, the board is authorized to transport school children from one school district to another, when in its judgment the education of such children will thereby be improved. The sole object of the schools is to educate the children, and the trustees of Bfraden School district were not entitled to an injunction to prevent the Board of Education of Gwinnett County from transporting children from Braden district to a school in Lilburn district."
lHi
It is my opmron that the above authorities are controlling upon the question raised by you.
In this connection, I call your attention to an official oprmon rendered to you on October 18, 1939 covering the question of transportation of pupils, which may be of interest to you.
EDUCATION-County SchoO/l Superintendent (Unofficial) Residents of independent school system not under County School Superintendent may not vote for that officer.
February 2, 1948 Honorable M. F. Moody, Ordinary
Your letter of January 19th received. You request my unofficial opmron on the question of whether or not citizens who reside in the city of Baxley where there is an independent school system would have the right to vote for the county superintendent of schools.
Section 32-1002 of the Code of 1933, being the codification of the school Code of 1919, and amended in 1931, provided in part as follows:
"All county superintendent of schools shall be elected by the qualified
voters of their respective counties quadrenially * * * provided, if there is any
county one or more independent school systems not under the supervision of the county superintendent, the voters of such independent system or systems
shall not vote in any primary or election for the county superintendent. * * *"
It was held in the cases of Bower v. Avery, 172 Ga. 272, and Culbreth v. Cannady, 168 Ga. 444, that the county superintendent of schools was a county officer. Section 2-8301 of the Code being a part of the Constitution of 1877 provided in part as follows:
"The county officers shall be elected by the qualified voters of their
respective counties or districts and shall hold their offices for four years * * *."
The same constitutional provision appears in Paragraph 1, Section 2, Article 11 of the 1945 Constitution.
Under the Constitution of 1877 the Supreme Court in the Bower v. Avery case, supra, held that a person who resided in an independent school system was ineligible to hold the office of county school superintendent because he was not a legal voter in that part of the county lying outside of the independent system.
I have examined the 1945 Constitution and attention is called to the following provisions of the same which, in my opinion, would enter into a solution of the question proposed by you. Paragraph 1, Section 5, Article 8 of the Constitution of 1945 provides in part as follows:
"Authority is granted to counties to establish and maintain public schools within their limits. Each county, exclusive of an independent school system now in existence in the county, shall compose one school district and shall be
confined to the control and management of a county board of education. * * "
The members of the county board of education of such county shall be selected from that portion of the county not embraced within the territory of an independent school district."
Paragraph 1, Section 12, Article 8 of the Constitution of 1945 gives authority to the several counties to levy a maintenance tax for the support of
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schools on property located outside independent school systems. Under Paragraph 1, Section 7, Article 8 independent systems in existence at the time of the adoption of the Constitution were granted permission to continue operating as such. The quoted provisions of the 1945 Constitution seem to cle,arly indicate that it was the intention of the General Assembly proposing the new Constitu. tion, and of the people in adopting same, that there should be two political subdivisions for handling school affairs, first, the county district com,posed of the territory lying outside of the independent system, which territory should be under the control and management of a county board of education. Secondly, independent systems operated by municipal corporations. Paragraph 1, Section 6 of Article 8 provides for a county school superintendent. This Section is as follows:
"There shall be a County School Superintendent, who shall be the executive officer of the County Board of Education. He shall be elected by the people and his term of office shall be for four years and run concurrently with other county officers. The qualifications and the salary of the County School Superintendent shall be fixed by law."
It will be noted that the county school superintendent is the executive officer of the county board of education. He is to be elected by the people and to have such qualifications and salary as shall be fixed by law. The Constitution does not say that he shall be elected by the people of the county, as the Constitution did say in Paragraph 1, Section 2, Article 11 in dealing with other county officers. Since the Constitution sets up two separate subdivisions, I am of the opinion that it was the intention of the framers of the Constitution, and of the people in adopting same, that the county school superintendent should be elected from that portion of the county coming under the control of the county board of education. In the case of Saxton, et al. v. Bell, 201' Ga. 797, the Supreme Court in construing the 1945 Constitution held that the Constitution did not abolish the office of county school superintendent, but simply changed the office from a statvtory one to a constitutional one. In the body of the opinion Justice Wyatt states:
"It follows that the Constitution of 1945 did not purport to disturb our comprehe11sive code of school laws other than to make the offices of county school superintendent and county boards of education constitutional rather than statutory offices."
The same ruling was made in Powell v. Pric.e, 201 Ga. 833, and in Wheeler v. Boal'd of Trustees of Fargo Consolid,ated School! District, 200 Gia. 323.
I am, therefore, of the private opinion that voters residing in an independent school system are not entitled to vote for the county school superintendent who is an officer of that part of the county which lies outside of independent school systems.
You must understand, of course, that this is a private opinion and that it is not binding on anyone. Under the law I am not permitted to render opinions unless requested to do so by the Governor, and even then it must be on some question where the State is interested as a party. I have given you the above as a matter of information.
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EDUCATION-County SchoOl! Superintendent (Unofficial)
Sets out statutory qualifications for County School Superintendents.
February 11, 1948
Mr. C. H. Grizzle
This will acknowledge receipt of your letter of January 17, 1948, in which
you request an opinion upon your qualifications to hold the office of County
School Superintendent.
,
The question of eligibility of any person to hold a public office depends
upon facts which, when challenged and drawn in question in a proper judicial
proceeding, is a judicial question to be determined by the courts. Should I
undertake to determine the eligibility of any person elected or appointed to any
office, I would be invading the jurisdiction of the courts. In addition, I am
not permitted by law to render any official opinions upon a question of this
nature. In fact, I can only render opinions when requested to do so by the
Governor or one of the heads of the departments of the State, and even then it
must be on some question in which the State is involved.
The statutory qualifications for County School Superintendents are set out
in Section 32-1004 of the 1933 Annotated Code of Georgia as follows:
"32-1004. Qualifications of county superintendents.-Before any person
shall be qualified or eligible to the office of county superintendent of schools,
he shall have had at least three years' practical experience in teaching, hold a
first-grade high school license, or in lieu thereof shall have a diploma from a
literary college or normal school, or shall have had five years' experience in
the actual supervision of schools, or stand an approved examination before the
State Board of Education as to his qualifications, be a person of good moral
character, never convicted of any crime involving moral turpitude. The county
superintendent of school shall perform all the clerical duties which were for-
merly required of the county school commissioner. Before being eligible to
qualify for election, candidates for the position must file with the State Board
of Education a certificate showing at least one of the above qualifications.
This certificate must be signed by the president of the county board of educa-
tion. (Acts 1919, p. 350.)"
I would suggest that if you are unable to satisfactorily convince yourself
that you possess the necessary qualifications set forth in the above Code Sec-
tion that you consult with the State Department of Education for their personal
views as to whether or not the qualifications that you possess fall within the
provisions of the above quoted provision of law.
EDUCATION-Coun.ty SchoOl! Superintendent (Unofficial) Residents of independent school system not under County School Superintendent may not vote for that officer.
February 16, 1948 Mr. James C. Flanigan
This will acknowledge receipt of your letter of February 10, 1948, and I am attaching hereto a copy of the information I furnished Honorable M. F. Moody, Ordinary of Appling County, and you will note that the question involved was one of that of a voter residing in an independent school system and not being entitled to vote for the county school superintendent who is an
118
officer of that part of the county which lies outside of independent school systems. You will note also that this information is subject to limitations contained in the last paragTaph of my letter to Mr. Moody.
As stated in Mr. Moody's lf,tter, I am prohibited by law from giving allj opinion to anyone except the Governor and the heads of the various departments of the State, and then only upon matters involving the State's interests, and anything I may say in reply to your letter is to be considered unofficial and not binding upon anyone in any manner whatsoever, but given purely as information in order to be of any help that I can in solving your problem.
In regard to the county school superintendent, as mentioned in you;r letter, you will note that the Supreme Court of Georgia, in the case of Mars'hiall vs. Walker, 183, Ga., p. 45, held:
"2. While the office of county school superintendent is a county office (Culbreth v. Cannady, 168 Ga. 444, 148 S. E. 102), this office was not in existence at the time of adoption of the constitution (Ga. L. 1887, p. 68, sec. 12; Ga. L. 1909, p. 154; Ga. L. 1912, p. 18'0; Ga. L. 1919, p. 349; Code of 1933, 32-1001, 32-1002) ; and therefore the constitutional provision as to the qualifications of 'county officers' did not prevent the legislature from prescribing other or different qualifications for persons who might hold the office of county school superintendent. Barnes v. Wat.son, Rhodes v. Jernigan, Wilson v. Harris, supra.
"3. By an act approved August 27, 1931, the legislature amended Sec. 258 (7) of the Civil Code of 1910, relating to statutory qualifications of public officers, so as to provide 'that any person who shall have been a bona fide citizen of a county for two years shall be eligible to be elected or appointed as county school superintendent, even though said person should not reside in that part of the county which is under the supervision of the county superintendent of schools and (be) ineligible to vote in the election for such superintendent of schools.' Ga. L. 1931, p. 126; Gode of 1933, 89-101 (7). Under the rulings made in the preceding notes, this provision of the act of 1931 does not violate the constitutional provision relating to the qualifications of county officers, on the ground that it permits the holding of a county office by one who is not a qualified voter.
"4. Under the rulings stated above, as applied to the evidence in the instant quo warranto proceeding, the judge, who tried the case without jury, did not err in finding that the respondent was qualified to hold the office of county school superintendent, as against the contention that he was domiciled in an alleged independent school district and by reason of such fact was not qualified to vote in an election for such office, the statute law as construed and applied in Culbreth v. Cannady, 168 Ga. 444 (supra), Aivery v. Bower, 170 Ga. 202 (152 S.E. 239), Bower v. Avery, 172 Ga. 272 (158 S.E. 10) Olliff. v. Hendrix, 172 Ga. 497 (158 S.E. 11), and Phillips v. Rozar, 172 Ga. 862 (159 S.E. 245), having been charged by the act of 1931, supra. In this view it is unnecessary to determine whether the school district in question is an independent district, or should be treated as a quasi-independent school district, within the meaning of the Code, Sec. 32-1002.''
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EDUCATION-Coun.ty Schooil Superintendent (Unoffi.cial) Authority of the County School Superintendent to use "school district's money" for a lighting system for the county schools depends on the nature of the funds. February 25, 1948
Mr. J. 0. White, Jr. This will acknowledge receipt of your letter of February 18, 1948, in which
you request that I give you an opinion on the following question: "Is it possible for me as County School Superintendent and Treasurer of
all the school districts to use the school districts' money to help pay for a lighting system for the schools of this county1''
Under the law I am prohibited from giving opinions to anyone except the Governor and the heads of the various departments of the State, and then only upon matters in which the State is involved. Therefore, anything that I may say in reply to your letter is unofficial and is not binding upon anyone in any manner whatsoever.
Section 32-9'09 of the 1933 Code of Georgia Annotated Pocket Supplement provides:
"32-909. School term. School property and facilities.-The county boards of education shall have the power to purchase, lease or rent school sites; build, repair or rent schoolhouses, purchase maps, globes, and school furniture, and m,ake all arrangements necessary to the efficient operation of the schools. The said boards are invested with the title, care and custody of all schoolhouses or other property belonging to the subdistricts now or hereafter defined, with power to control the same in such manner as they think will best serve the interests of the common schools; and when, in the opinion of the board, any schoolhouse site has become unnecessary or inconvenient, they may sell the same in the name of the county board of education; such conveyance to be executed by the president or secretary of the board, according to the order of the board. They shall have the power to receive any gift, grant, donation, or devise made for the use of the common schools within their respective counties, and all conveyances of real estate which may be made to said board shall vest the property in said board of education and their successors in office. It shall also be the duty of said board of education to make arrangements for the instruction of the children of the white and colored races in separate schools. They shall, as. far as practicable, provide the same facilities for both races in respect to attainments and abilities of teachers, but the children of the white and cdfored races shall not be taught together in any common or public school. In respect to the building of schoolhouses, the said board of education may provide for the same, either by labor on the part of the citizens of the subdistricts, or by a tax on their property. The construction of all public school buildings must be approved by the superintendent and board of education and must be according to the plans furnished by the county school authorities and the State Board of Education. (A,cts 1919, p. 323; 1937, pp. 882, 892.)"
The solution to your problem and applicability of the above Code Section would turn on the point as to what type of funds (for what purposes levied, etc.) that you refer to when you state "school districts' money".
It would appear that the question you propound addresses itself to the County School B:oar:d and your county attorney, and I would suggest that you advise with them since the matter does not fall within my jurisdiction.
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EDUCATION-County School} Superintendent (Unofficial) Residents of independent school system not under County School Superintendent may not vote for that officer.
February 27, 1948 Honorable J. T. Wheeler, Mayor City of Bremen
This will acknowledge receipt of your letter of February 26, 1948, in which you request an opinion upon the following question:
"I would appreciate very much an opinion from you as to whether or not the voters of the incorporated City of Bremen would be eligible to vote in this election (March 19, 1948 primary) for a County School Superintendent."
Under the law I am prohibited from giving opinions to anyone except the Governor and the heads of the various departments of the State government, and then only upon matters in which the State is involved. Therefore, anything that I may say in reply to your letter is to be considered unofficial and purely as information and not binding upon anyone in any manner whatsoever.
Section 32-1002 of the 1933 Annotated Code provides: "32-1002. (1489) Election and term of office. Residents of independent system disqualified to vote.-All county superintendents of schools shall be elected by the qualified voters of their respective counties quadrenially on Tuesday after the first Monday in November, for terms of four years beginning on the first day of January following the day of election. Each shall hold office until his successor is elected and qualified: Provided, if there is in any county one or more independent school systems not under the supervision of the county superintendent, the voters of such independent system or systems shall not vote in any primary or election for the county superintendent. But this section shall not disqualify registered, qualified voters residing in the limits of a quasiindependent school district from voting in any primary or election for county superintendent of schools. (Acts 1887, p. 68; 1909, p. 154; 1914, p. 47; 1919, p. 349; 1931, p. 124. Const., Art. XI, Sec. II, Par. I (2-8301.) 172 Ga. 497, 500 (158 S. E. 11) .) " You will note that this section refers to the general election, not primaries. The question of whether or not a school district is an independent or quasiindependent is a question of fact to be determined by the local authorities charged with such responsibilities. You can appreciate why my duties, which are prescribed by statute, prohibits me from invading the province of local affairs. Such matters address themselves to the city and county attorn@y and the subdivisions of government involved.
EDUCATION-County Schoo,} Superintenden.t (Unofficial) Residents of independent school system not under County School Superintendent may not vote for that officer.
Honorable T. T. Benton
March 15, 1948
This will acknowledge receipt of your letter of March 8, 1948, in which
you ask my opinion upon the following question:
"Should the voters living inside of the corporate limits of the City of
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Commerce be allowed to vote for County School Superintendent in the Primary of March 24, 1948?"
Under the law I am prohibited from giving an opinion to anyone except the Governor and the heads of the various State Departments, and then only when the State is involved. However, I am pleased to be of any assistl!-nce I can to you, and anything that I may say in reply to your letter is to be considered unofficial and given only as information and not binding upon anyone in any manner whatsoever.
Section 32-1002 of the 1933 Annotated Code provides: "Election and term of office. Residents of independent system disqualified to vote.-All county superintendents of schools shall be elected by the qualified voters of their respective counties quadrenially on Tuesday after the first Monday in November, for terms of four years beginning on the first day of January following the day of election. Each shall hold office until his successor is elected and qualified: Provided, if there is in any county one or more independent school systems not under the supervision of the county superintendent, the voters of such independent system or systems shall not vote in any primary or election for the county superintendent. But this section shall not disqualify registered, qualified voters residing in the limits of a quasi-independent school district from voting in any primary or election for county superintendent of schools. (Acts 1887, p. 68; 1909, p. 154; 1914, p. 47; 1919, p. 349; 1931, p. 124. Const., Art. XI, Sec. II, Par. I (Sec. 2-8301.) 172 Ga. 497, 500 (158 S. E. 11.)" You will note that this statute provides that if there is in any county one or more independent school systems not under the supervision of the county school superintendent, the voters of such independent system or sytems shall not vote in any primary or election for the county superintendent. It further provides that this statute shall not disqualify registered, qualified voters residing in the limits of a quasi-independent school district from voting in any primary or election for county superintendent of schools. It is a question of fact as to whether or not a school system is independent or quasi-independent, which must be determined by the local authorities charged with the responsibility of making such determination. In the case of Olliff vs. Hen.d.rix, 172 Ga. 497, the Supreme Court of Georgia held:
"2. That part of section 1'47 of th> Code of Sehool Laws (Ga. L, 1919, p. :347) which declares that if there be in the county referred to one or more independent school systems not under the supervision of the county superintendent, the voters of such independent system or systems shall not vote in the election for county superintendent, does not violate that paragraph of the constitution found in the Civil Code (1910), Section 6396, in that it prohibits resident 1egally qualified voters from exercising the right to register and vote in an election by the people for a county officer, and thereby denies to respondent the right to vote and hold the office.
"3. Nor does it violate the paragraph of the constitution found in Section 6398, for like reason.
"4. Nor does it violate the paragraph of the constitution found in Section 6600, as to uniformity of tribunals or officers for transaction of county matters, etc.
"5. Section 146 of the Code of School Laws did not repeal section 1489
122
of the Civil Code of 1910. That part of section 147 of the Code of School Laws referred to above, considered with the other sections just cited, is not void on the ground that no provision is made for a separate registration or a separate voters list of those qualified to vote in the districts wherein independent school systems are located."
EDUCATION-County Schooa Superintendent (Unofficial) The only requirements as to qualifications of County School Superintendents are set out in Ga. Code Ann. 32-1004,' except that by Georgia Laws 1939, p. 196 these qualifications are changed as to counties having a population of 40,000 or more.
June 16, 1948 Honorable T. N. Orr
I have your letter of June 7, in which you request information as to the legal qualifications which must be> met by County Superintendents of Schools.
As you have pointed out irt 'your letter, the qualifications are set out in Georgia Code Annotated, Section 32-1004. This Section is still in effect and the qualifications set out therein are the only requirements provided by our State law.
In 1939 the General Assembly ~nded this Section so as to change the qualifications of the County Superintendent of Schools in all counties having a population of 40,000 or above, according to the Census of 1930 or any future Census. This Act is to be found in Georgia Laws 1939, page 196.
As you know, I am prohibited by law from rendering official opinions to anyone except the Governor and heads of the various State departments, therefore, the above remarks are entir~ly personal, unofficial, and not binding on anyone.
EDUCATION-Librariea Proper authorities of county and municipality may contract with reference to establishing and maintaining libraries, levying taxes therefor in such amount as is requisite.
January 7, 1948 Honorable M. D. Collins State Superintendent of Schools
This will acknowledge receipt of copy of your letter of December 30, 1947, to Miss Mary E. Townes, Director of Athens Regional Library, together with letter from Miss Townes to you, in which you request an opinion as to whether or not members of the Clarke County Board of Commissioners of Roads and Revenues and members of the City Council have the power to levy a certain number of mills for the support of public library service under the new Constitution.
Replying thereto, I beg to advise that Subsection 14 of Section 4, Paragraph 1, Article 7 of the new Constitution authorizes counties to levy a tax to acquire, improve and maintain airports, public parks, and public libraries.
The General Assembly of 1946 passed an enabling Act carrying into effect
123
the above provisions of the Constitution. The State has a limit of 5 mills for State purposes and the counties are
authorized to levy a tax of 2% mills for general county purposes. Counties are authorized to levy for certain specific purposes an additional tax over and above the 2% mills. Since the adoption of the new Constitution there has been no provision made by the General Assembly for any particular rate or millage for purposes other than county purposes, therefore, I am of the opinion that taxes could be levied in certain amounts, in the discretion of the taxing power, which would be necessary to effectuate the purposes for which the same were levied, the said tax not being a tax for general county purposes.
Chapter 32-2708 of the cumulative pocket part of the Annotated Code of 1933, in regard to public libraries, reads as follows:
"Political subdivisions, other than municipal corporations, are hereby authorized to establish and maintain public libraries for purposes of education, and to support the same by current revenue or by donations or bequests which they are authorized to receive for that purpose; and such political subdivisions may contract with each other and with such m,unicipal corporations as may be already maintaining libraries, operated either by their own governing bodies or by boards of trustees or other officials, within the counties in which municipal corporations are situated, or in adjoining counties, and may enter into cooperative agreements in the establishment and mainte:nance of such libraries upon such terms as may be agreed on between their respective governing bodies: Provided, however, that any such contract or cooperative agreement relating to a library maintained by a municipality, but operated by a board of trustees, or other officials, shall be made by the governing body of such political subdivision with the governing body of any such municipality and the board of trustees, or other officials through whom such library so maintained by such municipality is operated."
Under these provisions it appears that counties and municipalities have the authority to contract with one another for the purpose of establishing or maintaining public libraries.
In view of the provisions of the Constitution as above set out and the Section above quoted, I am of the opinion that the governing authorities of Clarke County and the City Council of Athens have the power to levy a special tax for the support of public library service in such manner as the necessities of the case may require.
I wish to state that the levy of taxes is a matter for County and Municipal authorities and over which the Attorney General has no jurisdiction, therefore the opinion herein given is strictly personal and unofficial and not binding.
EDUCATION-School Bo,ards (Unofficial) Board of Education has control over pupils en route to scl::ool.
August 10, 1948 Mr. M. Charles Hansen Administrative Assistant School and College Division National Safety Council
This is in reply to your request for information on the laws in this State with respect to school safety patrols and the liability of boards of education,
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superintendents, principals, or teachers to pupils organized into such groups for the purpose of directing school-child pedestrians and vehicular traffic at or near schools.
This problem has never been presented to the highest courts of this State, therefore, I can give you no authoritative answer on the subject.
As to your question concerning the control of the boards of education over pupils enroute to school, there are also no court cases. However, it is my opinion that in view of the broad discretionary powers of the boards of education, which has been held to apply in restricting school children from certain activities at night when they would ordinarily be considered under parental control, (Mangum v. Keith, 147 Ga. 603), the boards of education would have control over pupils enroute to school.
As the Attorney General is prohibited by law from rendering official opinions to persons other than the Governor and heads of the various State departments this m:ust be considered as my personal views on this subject.
EDUCATION-School Bon,ds (Unofficial) The Proceeds of school bonds are to be used only for the purpose and in the territory in which voted.
December 7, 1948 Honorable Arthur K. Bolton Representative-Elect Spalding County
This will acknowledge receipt of your letter of recent date making inquiry as to a bonded indebtedness of the City of Griffin. In your letter you state that the City of Griffin has voted to float $750,000.00 worth of bonds for use in the Griffin Independent School System.
I am inclined to think that the bond money could be used only for the purpose and in the territory for which it was voted. Should the County and City schools be consolidated, it would not relieve the City of Griffin of its obligation to pay this bonded indebtedness. That being true, the City of Griffin would retain control of these funds. I doubt that the City of Griffin would have authority to turn these bonds over to the County to be used as they saw fit.
Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. The views expressed in this letter are, therefore, expressions of my personal opinion, and are not to be considered as official or as binding upon anyone.
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EDUCATION-Bonds (Un.official) Where issue of bonds was sold by consolidated school district to build schoolhouse, after merger of districts proceeds of bond issue can be used only to build schoolhouse.
July 28, 1948
Honorable Edwin W. Dart Judge Court of Ordinary
This is in reply to your letter of July 26, 1948,r in which you inquire if the Supreme Court has recently decided a case in regard to a local school bond election in which it was ruled that a declaratory judgment would not be granted. You further advise that the decision to which you refer is thought to have been containE:d in an advance sheet of the Southeastern Reporter.
A thorough search of the Southeastern Reporter Advance Sheets has been made by the writer, and the case nearest in point to the one about which you inquire is as follows:
"Where consolidated school district voted an issue of bonds to build a school house, and bonds were sold and proceeds were deposited in bank, and, after enactment of act merging all school districts except independent school districts into one school district for each county, money was paid over to board of education of county, board could lawfully use the funds only' to build schoolhouse. Laws 1946', p. 206, ss. 20, 21.-Board of Ed.. of Paulding Coun.ty v. Gray, 47 S. E. 2d, 508."
The above is contained in Advance Sheet dated May 27, 1948, where the case quoted above is contained.
EDUCATION-State Board The State Board of Education may not, without express legislative authority, dispose of timber on land deeded to it by the Department of Agriculture.
February 12, 1948 Dr. M. D. Collins State Superintendent of Schools
This will acknowledge receipt of your letter of January 28, 1948, in which you state that the Farm Security Administration deeded to the Georgia State Board of Education, 226.148 acres of land in Macon County, known as the Gamp John Hope property; that the property has a number of buildings and a lake used for swimming, which was constructed by the National Youth Administration as a State camp for Negro youth.
You further state that on the property there is considerable timber and that you requested the State Forester to make a survey to determine the number of mature trees thereon, and that the survey, when completed, reveals 66,800 board feet of mature trees, which you state should be harvested.
You state that the proceeds from this timber will be used to repair the buildings and also to make additional improvements which are badly needed, and that you desire an opinion from me as to what procedure should be used in marketing the timber.
An analysis of the deed from the U. S. Department of Agriculture, Farm
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Security Administration, dated December 18, 1945, conveying the said property to the State Board of Education, contains the following condition:
"TO HAVE AND TO HOLD the said property, the improvements thereon, unto the said Grantee, its successors and assigns, so long as the said property and facilities are used for educational and other related community purposes and for no other purpose, and so long as the said property and facilities rem~in in their present location."
"Upon the breach of any part of the aforesaid conditions, or upon abandonment of the property or cessation of use for the purposes set out herein, the Government may elect to reenter upon the property and terminate the estate herein quitclaimed, and in this event, the Grantee will, upon demand, execute and deliver to the Government a quitclaim deed covering the aforesaid property."
I call your attention to that part of the above provision, which reads: "so lon,g as the said property and facilities remain in their present location." A removal of such a quantity of growing timber may be a breach contemplated by the Grantor in said deed. An examination of the laws relative to the Department of Education does not disclose any express authority for the State Department of E.ducation to enter into a contract for the sale of State property. This office, has made several rulings to the effect that State property cannot be sold, leased, or otherwise disposed of without legislative authority. One of these rulings, which was made on October 25, 1943 by then Attorney General T. Grady Head to the Director of the State Department of Parks, is as follows: "Dear Mr. Harrison: "I am pleased to acknowledge receipt of your letter of October 20th, in which you state the following: "'We have some pine and cypress trees in swamp land, on our Little Ocmulgee State Park property, that can never be of any use, other than sell this timber and use the proceeds to help repair and maintain the Park buildings. Would you please advise me if this can be done without conflicting with State Laws.' "We have made an examination of the laws relative to the Department of State Parks, and have determined that these laws do not contain any express authority for you as Director to enter into an agreement for the sale of trees located on State Park property. The fact that the trees desired to be sold can never be used by the State in the development of its parks does not vest authority in any public official to make a disposition or sale of such property. Perhaps it would have been beneficial to the Departm,ent of State Parks as well as the State itself if the General Assembly had passed legislation giving the Director of the Department of State Parks a discretion to be exercised in matters of this nature.
"In reference to the powers of public officers, Section 89-903 of the: Code of Georgia provides as follows:
" 'Powers of all public officers are defined by law, and all persons must take notice thereof. The public may not be estopped by the acts of any officer done in the exercise of a power not conferred.'
"Construing the above provision of law, the Supreme Court of Georgia in Ross vs. Bibb Company, 130 Ga. p. 585, held:
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" 'Powers of all public officers are defined by law. Code Section 268. Therefore, no county officer can, in the absence of legislative authority to do so, make a contract binding on the county. Hutchenon vs. Robinson, 82 Ga. 783; Albany Bouling Com,pany vs. Watson, 103 Ga. 503; Howard vs. Eariy County, 104 Ga. 669; Turner vs. Fuilton County, 109 Ga. 633; Town of Decatu~ vs. DeKalb County, 130 Ga. 483.'
"From the above provisions of law, I am of the opinion that as Director of the Department of State Parks, you are not authorized by law to sell or contract for the sale of trees located on State Park property even though such trees are of no benefit to the State parks in question. It would require an Act of the Legislature in my judgment, to grant the authority to sell or otherwise dispose of State property.''
"The only exception to the rule stated in Section 91-804 of the Code is as follows:
"When any public property has become unserviceable, it may be sold or otherwise disposed of, by order of the proper authority, and an entry of the same shall be made in said book, and the money received therefrom shall be paid into the State Treasury.''
Section 91-805 of the Code provides: "The 'proper authority' referred to in this Chapter is the Governor, for all officers of the State; and the county commissioners or other officers having eharge of county matters, for all officers of the county." Section 40-1902 enumerates the duties, power and authority of the State Supervisor of Purchases, and Sub-section (e) provides: "To have general supervision of all store rooms and stores operated by the State government, or any of its departments, institutions, or agencies; to provide for transfer andjor exchange between all State departments, institutions and agencies, or to sell all .supplies, materials and equipme,nt which are surplus, obsolete or unused'; and to maintain inventories of all fixed property and of all movable equipment, supplies, and materials belonging to the State government, or any of its departments, institutions or agencies. The only safe and proper way to dispose of State property, when the same has not become clearly unserviceable within the meaning of Section 91-804, is by an Act of the General Assembly. It seems that even when the applicability of Section 91-804 is questionable, that it would be the wiser course to secure legislative authority before disposing of State property. From a study of the deed of the property you mentioned, I am inclined to the conclusion that to move large quantities of growing trees from said property would be violation of the conditions contained in said deed. There is considerable doubt in my mind that such quantities of growing trees as you mention could legally be said to be unserviceable State property, since they are part of the real property in question, and not personalty. I might also call to your attention that any money received from the sale of unserviceable property would have to be paid into the State Treasury and could not be used by the Department of Education without proper appropriation. I necessarily must reach the opinion that the State Department of Education is not authorized by law to sell or contract for the sale of real property, even though such trees have reached what you call maturity. It would require an Act of the legislature to grant authority to sell, or otherwise dispose of State property, except as above set forth.
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EDUCATION-State Board An appeal on August 17 from a decision of the County Board made on July 15 was filed too late.
August 25, 1948 Honorable M. D. Collins State Superintendent of Schools
I have your letter of August 21 in which you request my opmwn as to whether or not an appeal from a decision of the Board of Education of Taylor County may properly be heard by the State Board of Education.
The decision appealed from was made on July 15, and the appeal was not made until August 17. Under these circ*mstances I concur fully in the opinions of the Honorables R. S. Foy and George Richard Jacob to the effect that the State Board of Education should not entertain the appeal because it was filed too late.
EDUCATION-State Board (Unofficial) The State Board of Education is authorized to prescribe minimum standards for all vehicles for transportation of pupils.
September 21, 1948 Mr. Ernest W. Gnann
I have your letter of Septem:ber 15, in which you request information on several questions concerning the State law on school buses.
Inasmuch as I am prohibited by law from rendering official opinions or advice to anyone except the Governor and heads of the various State departments, the following remarks are enth y unofficial and personal and not binding on anyone.
In 1947 the General Assembly en. ~ed a statute which touches on several of the questions you have asked. (Ga. Laws 1947 p. 1461; Ga. Code Ann. Sec. 32-423, et seq.). For your information 1 am enclosing herewith a printed copy of this Act.
You will observe that the State Board of Education is authorized to prescribe minimum standards for all vehicles purchased or used for transportation of pupils. Mr. Purcell in the State Department of Education informs me that the Board has prescribed standards for new vehicles, and I am sure that he will be most pleased to furnish you these on request.
EDUCATION-State Board The State Board of Education may not hear, de novo, a case decided by the County Board and not appealed within the time allowed.
October 15, 1948 Honorable M. D. Collins State Superintendent of Schools
I have your letter of October 6, in which you request my opinion as to whether or not the State Board of Education can hear a case arising in a County Educational System de novo without its having been decided by the County Board, and then appealed to the State Board.
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The question arises in a situation wherein the County Board had a case and decided it, and appellants did not appeal to the State Board within the legal time allowed. You are considering hearing the case de novo.
Georgia Oode Annotated, Section 32-414, states in part as follows: "The State Board of Education shall have appellate jurisdiction in all school matters w~ich may be appealed from any county or city board of education, and its decisions in all such matters shall be final and conclusive. . " (Emphasis supplied). The State Board of Education has only such quasi judicial powers as are specifically granted it by statute. Inasmuch as the only jurisdiction to hear cases granted it is appellate jurisdiction, I am very definitely of the opinion that it has no original jurisdiction and may not hear original cases. In short, the State Board of Education may hear and decide only those cases which are properly before it on appeal from County Boards of Education or other proper tribunal.
EDUCATION-State Dep.artment of Education (Unofficial) The State Department of Education is not obligated to reimburse the Veterans Administration for any sum paid to the Department on duly approved vouchers as prescribed in the contract.
N ovemher 17, 1948 Dr. M. D. Collins State Superintendent of Schools
Pursuant to your letter of October 16, 1948, I have reviewed contracts No. VA16R-VR 96, No. VA16R-VR 123, and renewal agreement No.1 of contract VA16R-VR 123, between the State Derartment of Education and the Veterans Administration.
I do not find any provision in the contracts submitted which would obligate the State Department of Education to return or reimburse the Veterans Administration any sum of money paid to the State Department of Education on any duly approved vouchers as prescribed in the contract.
I am returning to you herewith the contracts and correspondence attached thereto.
EDUCATION-Teacher Retir,ement Amounts paid under the Teachers Retirement System for an insane person shall be paid to the Ordinary if not in excess of $500., whereupon he shall pay out such funds for support, education and maintenance, or if not needed for such purposes, shall deposit same in a bank.
March 15, 1948 Honorable J. L. Yaden Secretary-Treasurer Teachers' Retirement System of Georgia
This will acknowledge receipt of your letter of March 8, 1948 enclosing a letter from Miss Elizabeth H. Westbrook, Ordinary of Crisp County, Georgia, dated March 6, 1948, requesting that I give you the proper procedure to follow in the case mentioned and similar cases in the future.
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Section 32-2906 of the Pocket Supplement of the 1933 Annotated Code provides:
"The administration and responsibility for the proper operation of the retirement system and for making effective the provisions of this chapter are hereby vested in the Board of Trustees, which shall be organized immediately after a majority of the trustees provided for in Section 32-2907 have qualified and taken the oath of office."
Under the above provisions of the teachers' retirement law, it is the responsibility and duty of the Board of Trustees to formulate such rules' and regulations consistent with the Retirement Act as will in their judgment serve to the best interest of the retirement fund and the individual beneficiaries thereof.
Section 49-701 of the 1933 Annotated Code provides: "Custody and distribution when no legal guardian.-The ordinaries of the several counties are hereby made and constituted the legal custodians and distributors of all moneys due and owing to any minor or insane person who has no legal and qualified guardian, and they are authorized to receive and collect all such moneys arising from insurance policies, benefit societies, legacies, inheritances, or any other source: Provided, that the amount due from all sources shall not exceed the amount of $500. Without any apportionment or qualifying order, the ordinary is authorized to take charge of such money or funds for such minor or insane person by virtue of his office as ordinary in the county of the residence of such minor or insane person, and the certificate of such ordinary, that no legally qualified guardian has been so appointed and that the estate, from all sources, does not exceed the amount of $500, shall be conclusive and shall be sufficient authority to justify any debtor or debtors in making payment of moneys due as aforesaid, claims therefor having been made by such ordinary. (Acts 1918, p. 198; 1927, p. 256.)" Section 49-703 of the 1933 Annotated Code provides: "Compensation of ordinaries.-The ordinaries shall receive as their compensation for such services five per cent on the amount so handled. (Acts 1918, p. 199) ." Section 49-704 of the 1933 Annotated Code provides: "Record of moneys received; inspection.-It shall be the duty of the ordinary to keep a well-bound book, properly indexed, in. which a complete record shall be kept of all money received by him for such minor or insane person; said record shall show from what source said funds were derived, and to whom and for what such money was paid, which book shall be open for inspection of the public at all times, as other records in his office. (Acts 1918, p. 199; 1927, p. 258.)"
Section 49-705 of the 1933 Annotated Code provides:
"Liability of ordinaries on bonds.-Such ordinaries shall be held accountable on their official bonds for the faithful discharge of their duties as such guardians and for the proper distribution of funds coming into their hands as such guardians. (Acts 1918, p. 199.)"
Section 49-706 of the 1933 Annotated Code provides:
"Payments authorized.-The ordinary receiving such funds is hereby authorized and directed to pay out said funds so received by him, or whatever amount he may think necessary, for the support, education, and maintenance of such minor or insane person, as in his judgment may be proper and right.
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Such expenditures, when made by the ordinary, shall be final, and no liability
shall attach to such ordinary or his bondsmen by reason of such expenditures
when properly made. (Acts 1918, p. 199; 1927, p. 256.)"
Section 49-707 of the 1933 Annotated Code provides:
"Deposit of funds.-When any such funds shall come into the hands of
the ordinary of any county, belonging to such minor or insane person, and
there shall be no cause or necessity arising for the payment of said funds for
support,; education, and maintenance of such minor or insane person, it shall
be the duty of such ordinary to place said funds in the savings department of
some good and solvent bank at the current rate of interest allowed on savings
deposits, and there shall be no further liability against such ordinary or his,
bondsmen when such deposit is made in good faith. (Acts 1918, p. 199; 1927,
p. 257.)"
)
Under the above provisions of law the ordinaries of the several counties
are constituted the legal custodians and distributors of all moneys due and
owing to any insane person who has no legal and qualified guardian, and they
are authorized to receive and collect all such moneys arising from insurance
policies, benefit societies, legacies, inheritances, or any other source, provided
the amount due from all sources shall not excE:ed the amount .of $500.00.
It is my opinion that the benefits to which a beneficiary is entitled to
under the teachers' retirement fund would fall within the provisions of Section
49-701.
Should the amount of all moneys due or owing to the insane person be
above $500.00, I call your attention to the provisions of Section 49-614 of the
1933 Annotated Code, which provides:
"Appointment of guardians without trial when in State HospitaL-The
ordinaries of the several counties are hereby authorized to appoint guardians for
insane persons without a trial, as provided for in section 49-604, whenever it
shall be made to appear to them that such insane person is in the Milledgeville
State Hospital upon commitment thereto, as provided in section 49-604, or when
it shall be shown by the certificate of the superintendent of the Milledgeville
State Hospital that such person is hopelessly insane and that it is necessary
for such person to have a guardian to take charge of his property. (Acts
1884-5, p. 130; 1925, p. 270.)"
Section 49-615 of the 1933 Annotated Code provides:
"Rules governing such guardians.-Guardians appointed under section 49-
614 shall be appointed under the same rules and regulations as govern the ap-
pointment of guardians for minor children, and the ordinary of the county
where such insane person lived at the time he was sent to the Hospital shall
have jurisdiction of the appointment of such guardian. (Acts 1884-5, p. 130.)"
EDUCATION-Te,ac:her Retirement An officer of the Georgia Teachers Education Association is not eligible to participate in the Teachers Retirement System.
April 16, 1948 Honorable J. L. Yaden Georgia Teachers' Retirement System
Your letter of April 7, 1948 relating to Mr. Vincent Henry Harris received. You request that I advise whether or not you can allow Mr. Harris prior service
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credit for the three years of service that he rendered as Secretary of the Georgia Teachers' Education Association for colored teachers.
From your letter, it would appear that Mr. Harris was employed as Secretary of the Georgia Teachers' Education Association, and that he was not engaged in teaching or in the supervision of teachers.
The question that you raise is controlled by my opinion of March 10, 1947 in regard to Mr. Sam F. Burke, Executive Secretary of the Georgia High School Association, and the citations contained therein.
I cannot construe the Georgia Teachers' Education Association to be an agency of the State so as to make the Association an employer, as defined by the Teachers' Retirement Act. Neither can I construe an employee of such Association as a teacher within the definition given by the Act. The Act does not make any exception for employees of the Georgia Teachers' Education Association as it did for the employees of the Georgia Educational Association.
No doubt employees of the Georgia Teachers' Education Association who give their time to educational work deserve recognition and opportunity to participate in the system; however, I am of the opinion that before they may do so it will be necessary for the Teachers' Retirement Act to be amended so as to give the Board of Trustees the right to consider them as teachers and to accept contributions from the Association as an employer.
EDUCATION-Teacher Retirement (Unofficial) For retirement under Teachers Retirement System, a certificate of a member of the Board of Trustees, or an affidavit of some person acquainted with the teacher while she was so employed is required.
April 22, 1948 Mr. R. F. Sperry
This will acknowledge receipt of your letter of March 4th with attached Form 3-A of the Teachers Retirement System of Georgia, which form I am returning to you herewith.
I am informed by Mr. J. L. Yaden, of the Teachers Retirement System, 20 Ivy Street, Atlanta, Georgia, that you should have this form executed by a person who was a member of the Board of Trustees of the school system where you were a teacher. I am also informed that if none of the members of the Board of Trustees is in life, the Board of Trustees of the Teachers Retirement System would accept an affidavit of some responsible person who actually had knowledge of your being a teacher during the years in question, for example, some member of one of your classes.
I trust that you will be able to have this application properly executed. Should you run into any difficulties I would suggest that you write Mr. Yaden for instructions which he will be very glad to give.
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EDUCATION-Teacher Retirement An application for service retirem6nt naming a beneficiary other than designated in application for membership and signed in member's name by said beneficiary does not constitute her the beneficiary.
July 6, 1948 Honorable J. L. Yaden, Secretary-Treasurer Teachers' Retirement System of Georgia Re: Miss Annie Mae Shockley.
I have your letter of June 9 in which you request my opinion as to the proper beneficiary of the above named teacher. The facts are, briefly, as follows:
In 1943 Miss Shockley made application for membership in the Teachers' Retirement System, naming Daisy Jordan, her sister, as beneficiary.
On April 14, 1948, Miss Shockley filed an application for service retirement; this application was filled out by Miss Shockley's niece, Elnora Render. In this application Elnora Render was named as the beneficiary. The signature on the application was signed "By Elnora Render."
On May 17, 1948, Miss Shockley died. Having been apprised of the above stated facts, John H. Goddard, of Goddard and Flynt, Attorneys, of Griffin, Georgia, who is a Special Deputy Assistant Attorney General, made a search of the records in Spalding County and found that the will of Annie Mae Shockley, executed March 10, 1948, was probated in common form after her death, and one Raymond Head qu'alified as executor of the will. Itern 4 of this will is as follows: "The remainder of my property consisting of money in the bank and post office, all insurance and teacher's retirement pay, together with funds from my household furniture which is to be sold at my death, is to be equally divided between my sister, Daisy Jordan and my two nieces, Artie Bell McGinty and Elnora Render. This division contained in this item is to be made after all of my just debts are paid out of the funds described in said item." It is my opinion that your office must pay the accumulated contributions of Annie Mae Shockley to Raymond Head, the executor of her will. Having done so, your office will be relieved of any liability and will have properly discharged its obligation. I am quite definitely of the opinion that the signature to the application made in April, 1948, signed "By Elnora Render" could not legally operate to make Elnora Render the sole beneficiary of the contributions. Should the executor, Raymond Head, be concerned as to the proper distribution of the funds so received, it is within the powers of his office as executor to request direction from the courts before he pays the funds out. I trust that the above is the information that you have sought, and if I can be of any further service to you in this matter do not hesitate to call on me. Should you desire to utilize the services of Mr. Goddard in Griffin, Georgia, for the purpose of communicating with Raymond Head, I am sure that he will be most willing to assist you.
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EDUCATION-Teacher Ret.irement No limitation exists at present as to when a person must enter the teaching profession and become a member of the Teachers Retirement System to claim prior service credit.
July 20, 1948
Honorable J. L. Yaden, Secretary-Treasurer Teachers' Retirement System of Georgia
I have your letter of June 22, 1948, in which you request my opinion on the following question:
When must a person enter the teaching profession and become a member of the Teachers' Retirement System in order to claim prior service credit?
You state the specific caSE:' of a teacher who stopped teaching in 1942 and engaged in other employment until August 1943, at which time he entererl the armed forces. This teacher was discharged in February 1946, and has not taught since, but will re-enter the teaching profession in September 1948. The teacher now wishes to obtain prior service credit, and you are desirous of my opinion as to whether or not he may obtain such credit.
Georgia Code Annotated, Section 32-2905, paragraph 2, states in part as follows:
"Under such rules and regulations as the Board of Trustees shall adopt,. each member who was a teacher at any time during the calendar year 1943, or in lieu of having taught in 1943, teaches two out of three years between January 1, 1940 and January 1, 1943, or has taught two years from January 1, 1945 to January 1, 1948, shall file a detailed statement of all services as a teacher rendered by him prior to July 1, 1943, for which he claims credit. In the event any person who would otherwise have qualified under this subsection shall be on leave in the armed forces of the United States, any such person shall have until six months after termination of his military service to qualify under the provisions hereof."
The provisions as to persons on leave in the armed forces states that any person "who would otherwise have qualified under the Section shall have
until six months after termination of his military service to qualify." It is
my opinion that the word "qualify" refers to the accomplishment of actual teaching service rather than to the period of time within which the individual must file the detailed statement of service rendered prior to July 1, 1943. In other words, the provision was intended to provide teachers who are Veterans of the armed forces a period of six months after discharge in which to qualify under the provisions of the section by accomplishing sufficient teaching services to total two years between January 1, 1940 and January 1, 1943, or two years between January 1, 1945 and January 1, 1948.
The section itself does not state any limitation as to when a teacher must be discharged from the armed services to be eligible for the six months additional period for qualification. Thus it is not clear whether a teacher must be discharged during the national emergency or for some years thereafter to obtain the extra period. Further, the statute is silent as to whether the six months period of service shall be made retroactive to qualify a teacher within one of the several periods set out in the statute.
The statute is also silent as to the period within which the member must
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file the detailed statement of his prior service; the statute states only that the member "shall file".
The statute does provide that members shall qualify and shall file "under such rules and regulations as the Board of Trustees shall adopt. . . ."
In the absence of specific statutory regulation of the questions discussed above, it is my opinion that the Board of Trustees is authorized to enact such rules and regulations as it deems fit, limiting the time within which a member may qualify as the recipient of prior service credit, and limiting the time in which a qualified member may file the detailed statement of his prior service. It is my opinion that the regulatory power granted the Board of Trustees is a plenary grant and is more than sufficient to authorize regulations on such questions as have been herein discussed.
Therefore, my answer to your specific inquiry as to how long a teacher has to qualify as a member of the System and to file his application for prior serv:ce credit, is that the statute itself does not set any limitations as to the time for accomplishing these acts; and in the absence of statutory provision, the Board of Trustees is authorized and competent to enact rules and regulations limiting the time within which these acts must be accomplished by any teacher.
EDUCATION-Teacher Retirement (Unofficial) Persons becoming teachers must, as a condition of employment, become members of Teachers Retirement System.
October 15, 1948 Mr. Clyde V. Martin
I have your letter of October 4 in which you request information as to whether or not you are required to become a member of the Teachers Retirement System of Georgia. You state that you are instructing Veterans in On the Farm Training Program. You enclose an executed application blank for membership in the Retirement System.
As you know, I am prohibited by law from rendering official opinions to anyone except the Governor and heads of the various State departments, therefore, the following remarks are entirely personal, unofficial, and not binding on anyone.
Georgia Code Annotated, Section 32-2903, provides in part as follows: "(1) Any person who becomes a teacher after January 1, 1944, shall become a member of the retirement system as a condition of his employment, except as herein otherwise provided. "(2) Any person who was a teacher on January 1, 1943, or becomes a teacher prior to January 1, 1944, shall become a member unless prior to January 1, 1944, he files with the Board of Trustees on a form provided by the Board a notice of his election not to be included in the membership of the system and a duly executed waiver of all present and prospective benefits which would otherwise accrue to him by participating in the system. . . " I return herewith your application for such action as you may choose to give it.
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EDUCATION-Teacher Retirement 1. .Prior Service Credit may not be given for services rendered in 1944. 2. The Agricultural & Industrial Development Board is an "employer" within the meaning of the Teachers Retirement Act. 3. The State Departm,ent of Education is also an "employer" within the meaning of the Teachers Retirement Act.
December 15, 1948 Honorable J. L. Yaden, Executive Secretary Teachers' Retirement System of Georgia
I am pleased to acknowledge receipt of your letter of December 1, 1948, in which you ask my opinion on the following questions:
"1. Are we permitted to give Prior Service Credit for service rendered in 1944, editing for Agriculture and Industrial Board in the amount of $110.00 paid for her salary?
"2. Is it permissible for the State to pay the matching fund of 6.83% on the remuneration Miss Anderson received in 1945 from the Agriculture and Development Board for editing in the amount of $189.00?
"3. Is it permissible for the Teachers' Retirement System to bill the State for 6.83% matching fund on $307.50, which Miss Anderson claims she received from the State Department of Education paid to Miss Anderson for editing services rendered for Agricultural Industrial Development Board?"
Section 32-2904 of the Annotated Code of 1933 provides, in part:
"Under such rules and regulations as the Board of Trustees shall adopt, each member who was a teacher at any time during the calendar year 1943, or in lieu of having taught in 1943, teaches two out of three years between January 1, 1940 and January 1, 1943 or has taught two years from January 1, 1945 to January 1, 1948, shall file a detailed statement of all services as a teacher rendered by him prior to July 1, 1943, for which he claims credit. . . . Upon verification of such statement of service, the Board of Trustees shall issue a prior service certificate certifying to the member the period of service prior to July 1, 1943 with which he is credited on the basis of his statement of service. ..."
Under the above provision of the Teachers' Retirement Act a teacher has a right to file a claim for prior service on three conditions: first, that the member was a teacher at any time during the calendar year of 1943; second, that the member taught school two out of three years between January 1, 1940 and January 1, 1943; or third, the member has taught two years from January 1, 1945 to January 1, 1948.
The period of service mentioned in question one of your letter (1944) does not fall within any one of the above three conditions; therefore, I am of the opinion that a prior service certificate within the meaning of Code Section 32-2904 could not be issued for the service in the year of 1944.
Section 32-2903 of the Code provides, in part:
"(1) Any person who becomes a teacher after January 1, 1944 shall become a member of the retirement system as a condition of his employment, ..."
To come within the Teachers' Retirement System of Georgia a person must be a teacher as defined within Paragraph 5 of Section 2901 of the Annotated Code of 1933. The teacher must likewise fie employed by an employer as is
137.
defined in Paragraph 4 of Section 32-2901. The term "employer" is defined as follows, (Section 32-2901):
"'Employer' shall mean the State of Georgia, the county or independent board of education, the State Board of Education, the Board of Regents of the University System of Georgia, or any other agency of and within the State by which a teacher is paid."
Section 40-2001 of the Annotated Code of 1933 provides, in part: "A Board known as the Agricultural and Industrial Development Board of Georgia is hereby created .." Section 40-2110 of the Annotated Code of 1933 provides, in part: "Said Board shall operate as an executive department of the State government, ..." In answer to your second question, it is my opinion that the Agricultural and Industrial Development Board of Georgia is an agency which comes within the definition of an employer under Section 32-2901 of the Code, and should any paid employee of said Board perform duties which would entitle such employee to be classified as a teacher, it would be the duty of the Board of Trustees of the Teachers' Retirement System to determine in doubtful cases whether such employee is a teacher as defined in Paragraph 5 of Section 32-2901 of the Code. It is my further opinion that if the Board of Trustees finds such employee to be a teacher as defined in Section 32-2901, then the Agricultural and Industrial Development Board of Georgia would be subject to all the provisions of Section 32-2921 of the Code relating to contributions by employers and employees. The State Board of Education is specifically named in the definition of "employer" under Code Section 32-2901. Therefore, my answer to your second question would apply to your third question.
EDUCATION-Teacher Retirement System Deposits by the Teachers Retirement System of $5,000 in each of several Savings and Loan Associations insured by the Federal Savings and Loan Insurance Corporation will be insured to the full amount in each case.
December 17, 1948 Honorable J. L. Yaden Executive Secretary-Treasurer Teachers' Retirement System of Georgia
I am pleased to acknowledge receipt of your letter of December 11, 1948 regarding my opinion on the following question:
"Various Building and Loan Associations over the State have petitioned the Board of Trustees of the Teachers' Retirement System to deposit as much as $5,000.00 in these various institutions, which pay not less than three percent interest on said deposits. The Board of Trustees wants to know if $5,000.00, deposited in the several institutions is guaranteed by the Federal Government separately, or if a sum total of $5,000.00 is guaranteed from all the contemplated deposits made in the various Building and Loan Associations. In other words, if the Board made fifty separate deposits in fifty separate institutions, would the $250,000.00 deposited, be fully guaranteed by the Federal Government?"
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Section 1725 of Title 12 of the United States Code Annotated provides in part:
"(a) There is hereby created a Federal Savings and Loan Insurance Corporation ... which shall insure the accounts of institutions eligible for insurance as herein after provided, . "
Section 1726 of Title 12 of the United States Code Annotated provides in part:
"(a) It shall be the duty of the Corporation to insure the accounts of all Federal savings and loan associations, and it may insure the accounts of building and loan, savings and loan, and homestead associations and cooperative banks organized and operated according to the laws of the State, ... in which they are chartered or organized."
Section 1728 of Title 12 of the United States Code Annotated provides: "(a) Each institution whose application for insurance under this subchapter is approved by the Corporation shall be entitled to insurance up to the full withdrawal or repurchasable value of the accounts of each of its members and investors (including individuals, partnerships, associations, and corporations) holding withdrawable or repurchasable shares, investment certificates, or deposits, in such institution; except that no member or investor of any such institution shall be insured for an aggregate amount in excess of $5,000.
"(b) In the event of a default by any insured institution the Corporation shall promptly determine the insured members thereof and the amount of their insured accounts, and shall make available to each of them, after notice by mail at his last-known address as shown by the books of the insured institution, and upon surrender and transfer to the Corporation of his insured account, either (1) a new insured account in an insured institution not in default, in an am.ount equal to the insured account so transferred, or (2) at the option of the insured member, the amount of his account which is insured under this section, as follows: Not to exceed 10 per centum in cash, and 50 per centum of the remainder within one year, and the balance within three years from the date of such default, in negotiable noninterest-bearing debentures of the Corporation. The Corporation shall furnish to all insured institutions a certificate stating that the insurance of accounts in such institution is to be paid in the manne:t; described in this subsection. June 27, 1934, c. 847, 405, 48 Stat. 1259."
Section 1730 of Title 12 of the United States Code Annotated provides:
"(a) Any institution which is insured under the provisions of this subchapter may, upon not less than ninety days' written notice to the Corporation, terminate its status as an insured institution upon a majority vote of its
shareholders entitled to vote, or upon a majority vote of its board of directors
or other similar governing body which is authorized to act for the institution. Thereupon its status as an insured institution shall immediately cease and all rights of its insured members to insurance under this subchapter shall immediately terminate; but the obligation of the institution to pay the premium charges for insurance shall continue for a period of three years after the date of such termination.
"(b) The Corporation shall have power to terminate the insured status of any insured institution at any time, after ninety days' notice in writing, for violation of any provision of this subchapter, or of any rule or regulation
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made thereunder, or of any agreement made pursuant to section 1726 of this title. In the event the insured status of any insured institution is so terminated it shall be unlawful thereafter for it to advertise or represent itself as an insured institution, but the insured accounts of its members existing on the date of such termination shall continue as such for a period of five years thereafter, and the institution shall be required to continue the payment of the premium charge for insurance during such five-year period. June 27, 1934, c. 847, 407, 48 Stat. 1260."
I assume for the purpose of this opinion that each of the Building and Loan Associations you refer to in your letter have been insured by the Federal Savings and Loan Insurance Corporation to cover each of its investors up to the maximum amount of $5,000.
The Federal Savings and Loan Insurance Corporation of Washington, D. C., in its publication entitled "Safety for Savings" states on page 5 thereof:
"May I have insured accounts in more than one insured association?" "Yes. An investor may hold insured accounts in any number of insured associations. Since his investment is insured in each up to $5,000, he may have an aggregate insured investment many times $5,000." This document, which is distributed to the public in general by the Federal Savings and Loan Insurance Corporation through its insured associations, states on page 2 thereof: "This booklet of answers to questions regarding safety for your savings. was prepared for your information by the Federal Savings and Loan Insurance Corporation, Washington, D. C." I find that the question propounded in your letter to me was submitted to the Federal Savings and Loan Insurance Corporation by the DeKalb County Federal Savings and Loan Association on October 4, 1943, and on October 7, 1948 the Federal Savings and Loan Insurance Corporation, through its Deputy General Manager, Honorable F. F. Lovell, replied: "We are glad to respond to your letter of October 4 with respect to insured accounts of $5,000 each in different insured institutions. "You are correct in your understanding that Section 405 (a) of Title IV covers this point which, as you state, could probably have been clarified. This is also covered in Section 301.1 (e) of the Rules and Regulations which states in part that 'The total insurance which any insured member may have in any one insured institution is $5,000, .. .' "There is nothing in the Act or the regulations which would not permit an investor to carry insured accounts in as many insured associations as he wished, and it has been ruled that such accounts would be fully insured so long as each account did not exceed $5,000." It is my opinion that an investor such as the Teachers' Retirement System of Georgia may hold insured accounts in any number of different and separate insured Building and Loan Associations in Georgia which are insured by the Federal Savings and Loan Insurance Corporation, and its investments in each such institution be insured up to $5,000, although the Teachers' Retirement System of Georgia may have an aggregate insured investment many times $5,000 in the various separate and different insured Building and Loan Associations in Georgia.
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EDUCATION-Tuition (Unofficial) A non-resident, paying school property taxes on Georgia property, must nevertheless pay out-of-State fees for child attending Georgia common school.
September 2, 1948 Hon. Hugh A. Bolt, Sr.
I have your letter of August 25 in which you request my opinion on the following situation:
You live in Alabama but own property in Troup County, Georgia, on which you pay taxes, including school taxes. You have been informed by the school authorities that you will have to pay out-of-State fees if your daughter is to attend the schools in West Point, Georgia.
Under Georgia law the Attorney General is prohibited from rendering official opinions to anyone except the Governor and heads of the various State departments, therefore the following remarks are entirely personal, unofficial, and not binding on anyone.
The Constitution of the State of Georgia provides that adequate education for the citizens of the State shall be provided by the State, the expense uf which shall be provided by taxation. (Constitution of 1945, Art. 8, Sec. 1, Par. 1; Ga. Code Ann. Sec. 2-6401). Tuition therefore is free to citizens of the State.
In Moore v. Brinson, 170 Ga. 680, 686, our Supreme Court stated: "A charge for matriculation can not be imposed as a condition precedent to the admission of children to a public school forming a part of the general school system of children living in the ter'ritory of the school and !o1Jherwis~ qualified." (Emphasis supplied). Thus it will be seen that both our Constitution and Court decisions provide that tuition shall be free to residents of the State and school area. The provision of free tuition has not been extended, however, to include nonresidents of the State or school area when such nonresidents enttr Georgia schools. I can understand your view when you state that you pay school taxes in Georgia and therefore feel that your child should be provided with free education in Georgia. Perhaps I can clarify the situation by stating that the education is a free service provided by the State and County governments. These governments obtain the funds to provide this free service by a tax on all property. The taxpayer who does not have children in school pays just as much tax as the taxpayer who does have children in school. The tax is based upon property owned in Georgia and not on the degree of use of the school facilities by any one taxpayer. This is the rule in most jurisdictions. I venture to say that even should you not pay any school tax in Alabama, if you are a legal resident there your child may attend the Alabama school free.
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EDUCATION-Univeraity of Georgia The Georgia Athletic Association may incorporate and borrow money as a private corporation to finance its activities but must operate under the supervision of the Board of Regents.
April 8, 1948
Hon. Harmon Caldwell, President University of Georgia
I am pleased to acknowledge your letter of March 25th, in which you state the following:
"The question has arisen as to whether the University of Georgia Athletic Association is authorized to borrow money for the purpose of financing its operations. For many years the Association has followed the practice of borrowing money during the spring and summer months and repaying the loans during the fall when the sales of football tickets are made. . . . The Athletic Association of the University was incorporated in 1928 by action of the Superior Court of Clarke County. This charter expired last month. A petition is now pending for a renewal of the charter....
"We should greatly appreciate your giving us an official ruling on the question of the Association's right to borrow money so that we will know how we can safely proceed in handling the affairs of the Athletic Association."
Article 8, Section 4, Paragraph I of the Constitution provides in part as follows:
"There shall be a Board of Regents of the University System of Georgia, and the government, control, and management of the University System of Georgia and all of its institutions in said system shall be vested in said Board of Regents of the University System of Georgia.... The said Board of Regents of the University System of Georgia shall have the powers and duties as provided by law existing at the time of the adoption of this Constitution, together with such further powers and duties as may be hereafter provided by law."
It is well settled that physical education, which includes football and other athletic contests, are integral parts of the educational program conducted by the State of Georgia. See Allen vs. Regents of the University System. of Georgia, 82 L. ed. p. 1448, and the cases cited therein. It must likewise follow that athletic contests engaged in by State institutions are under the control and management of the Board of Regents of the University System of Georgia. There is no legal method by which the Board of Regents of the University System of Georgia can be divested of this control over the athletic program conducted by the University and its various branches. It is also true that this authority cannot be delegated to a private corporation in such a way that the corporation will be performing functions and duties which are vested exclusively under the control and management of the Board of Regents.
The above statements however, do not prohibit the Board of Regents from exercising a sound discretion as to the means and methods to be em,ployed in carrying out their control and management of the University System and its institutions. The only restriction on such authority is that to be found in the Constitution and statutory laws passed in pursuance thereof. The Board o! Regents, being a constitutional department of the State government, is necessarily bound by all restrictions and limitations contained in the laws of this State to the same extent as all other departments and branches of the State
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government. The Board of Regents cannot contract debts or obligations on behalf of the State in violation of Article 7, Section 3, Paragraph I of the Constitution. Neither can the Board of Regents pledge the credit or property of the State to any individual, company, corporation or association, nor shall the State "become a joint owner or stockholder in or with, any individual, company, association or corporation." This would be in violation of Article 7, Section 3, Paragraph 4 of the State Constitution.
The Supreme Court of Georgia in the case of State of Georgia v. Re2e1nts of the University, 179 Ga. p. 210, at page 221 of the opinion in speaking of the status of the corporation known as Regents of the University System of Georgia, observed the following:
"The limitations upon the creation of State indebtedness as contained in that instrument do not apply to separate legal entities created as corporations by the State. The framers of the constitution saw fit to limit the bonded indebtedness which might be incurred by counties, cities, and other political divisions of the State, and it would seem that the omission of any limitations upon the university would imply that none of the inhibitions could be referable to that institution. Furthermore, the language of these constitutional provisions as to State indebtedness clearly indicate their applicability only to the State itself as a sovereign."
On page 222 of the opinion, the court in considering whether the bonds issued by the corporation were debts against the State held as follows:
"Regardless of the stipulations made, the State of Georgia could never be called upon to pay these bonds. Nor would it be under any obligation, moral or otherwise, to levy any tax for the purpose of repairing any loss that might result to the university in consequence of these transactions, if the action of the board should ultimately prove to be unwise and a loss should result. . . .
"The university corporation is not the State, or a part of the State, or an agency of the State. It is a mere creature of the State, and a debt of the creature does not stand upon a level with the creator and never can rise thereto. It is first, last, and always a debt of the creature and in no sense a debt of the creator."
Following the law as announced by the Supreme Court of Georgia in the above case, we m:ust come to the conclusion that under no circ*mstances could the credit or property of the State be pledged by the Athletic Association, and likewise it is clear that this association could in no way create a debt against the State of Georgia. Regardless of the stipulation made in any agreement between the Athletic Association and the financial institution or person loaning money to it, it must be clearly understood that the State of Georgia is in no way responsible for such obligations. As stated above, the Constitution absolutely prohibits this.
Since you do not set forth the agrtement or method by which it is proposed to permit the Athletic Association, Inc. to aid or assist in conducting the athletic program in State institutions, it must be understood that this opinion cannot rule upon the relationship between the Board of Regents and the corporation. The powers of the Board of Regents in exercising management over the various phases of the State educational system are very broad and comprehensive. In speaking of these powers, the Supreme Court of Georgia in State of Geor'gia vs. Regent,s of the University, supra, at page 218 of its opinion, held as follows:
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"So long as the Board does not exercise its powers capriciously or arbitrarily, or so as to thwart the purpose of the Legislature in establishing a system of university education, the board itself must determine what is necessary for the usefulness of the system, and thus will govern the University of Georgia and its several branches. The powers granted 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."
The Board of Regents being a constitutional department of the State government and charged with the control and management of the entire university system, it must necessarily follow that at all times every phase and detail concerning the operation of the State educational system are under the direct and exclusive authority of the said Board of Regents. It can in nowise delegate this duty and responsibility to the Athletic Association, Inc. Likewise, any State function which may be performed by the Athletic Association, Inc. is always subject to the supervisory powers of other State officials who by law are charged with certain responsibilities to all departments of the State government. In other words, the State Auditor must at all times have complete access to the books and records of the Athletic Association, and the same is subject to his authority and direction to the same extent as any other department or unit of the State government.
It likewise follows that if the Board of Regents see fit to permit the Athletic Association to aid or assist in the performance of the State educational program, this corporation is subject to the investigative powers of the Attorney General. In other words, the Board of Regents cannot escape its complete and full responsibility in relation to its athletic program.
In view of the above laws and legal circ*mstances, it is my opinion that the Georgia Athletic Association may incorporate and borrow money to finance its operations, as a private corporation without in any way creating a debt or obligation against the State; but that it must operate under the supervision of the State Board of Regents subject to the Constitution and all provisions of law relating to the powers and duties of the Board of Regents in its control and supervisory power which in the present case is based upon its control and supervision of football as a part of the educational program of the University of Georgia.
EDUCATION-University of Geo,rgia Board of Regents has jurisdiction over the misappropriation of funds by University of Georgia students from the sale of football tickets.
April 28, 1948 Dr. Harmon W. Caldwell, President University of Georgia
When you and Mr. Bolton recently discussed with me the result of the investigation that was made last November in reference to the misappropriation of funds derived from the sale of football tickets by certain students of the University, during the Fall season, you left with me certain affidavits, documents and signed confessions, and requested me to give you the benefit of my
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recommendation as to what course should be followed in the matter. After a careful consideration of these affidavits, documents, and signed
confessions, and after a rather extended personal interview with the two students who signed confessions, it is my recommendation that (1) the matter be immediately referred to the Board of Regents, for their consideration; and (2) that the Board of Regents or the Athletic Association submit the matter to the grand jury for investigation.
It is obvious from reading the documents, affidavits and confessions that there has been a sizeable misappropriation of funds and defalcation of football tickets by at least two students of the University who signed confessions to this effect.
I am basing my recommendation that the matter be submitted to the Board of Regents on the conclusions of law I reached in an official opinion to you dated April 8, 1948, in which I pointed out that while it is legal for the Athletic Association to incorporate as a private corporation and to borrow money for the purpose of promoting the physical education and athletic program of the University, in its final analysis the Constitution of this State places the government, control and management of the University System of Georgia and all of its institutions in the Board of Regents.
After holding that football and other athletic contests are integral parts of the educational program conducted by the State of Georgia, I concluded:
"It must likewise follow that athletic contests engaged in by State institutions are under the control and management of the Board of Regents of the University System of Georgia.... The Board of Regents being a constitutional part of the State Government and charged with the control and management of the entire University System, it must necessarily follow that at all times every phase and detail concerning the operation of the State educational system is' under the direction and exclusive authority of the said Board of Regents."
For this reason, I must conclude that it is the duty of the officials of the Athletic Association to submit matters such as we are considering to the Board of Regents, for their consideration. Their responsibility cannot be divested or avoided. Moreover, because of this responsibility they are entitled to the benefit of all the facts and circ*mstances involved.
It is also my further recommendation that the Athletic Association and the Board of Regents consider this case, not only from the standpoint of a violation of our criminal statutes, but also from the viewpoint of recovering the misappropriated funds by civil action. It may be that the official bonds of those persons who had supervision of the sale of football tickets should be made to respond in damages, even though such officials themselves were absolutely without penal responsibility.
While I realize that one of the students who executed a signed confession has agreed to repay the amount misappropriated, on a basis of $40 per month, there is no legal authority for an arrangement of this kind. Likewise, this student is insolvent; and if the official bonds of those persons who have super~ vision of the sale of the football tickets are responsible, there is a possibility of their liability ceasing within a specified period of time. Some such bonds have a limitation of liability fixed at 90 days after funds are misappropriated.
After the Athletic Association and the Board of Regents have arrived at their conclusion in the matter, I would appreciate receiving a copy of their
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findings for use in making any additional study which we may deem advisable. I think it is imperative that I be furnished with all information relating
to the official bonds of those persons who were charged with the supervision and collection of the funds in question. If it is determined that these official bonds are liable for such shortage, it is necessary that you either notify by letter the bonding companies involved, or forward this information to me as early as possible. I trust that the time limitation has not expired as of thiS! date; although from the file which you have supplied me, it appears that this defalcation has been known to the University officials since sometime around November of 1947.
EDUCATION-University of Georgia The Board of Regents may in its discretion award the amount of the Medical Scholarship at the School of Medicine at any time during the period of instruction.
August 16, 1948 Mr. L. R. Siebert, Executive Secretary Regents of the University System of Ga.
Receipt is acknowledged of your letter of August 12th along with a copy of Dr. Kelly's letter of August 10 relative to the proposed medical scholarship at the University of Georgia School of Medicine.
You asked for an opinion on whether a student who agrees to the terms of the scholarship could be paid the full amount in a lump sum during his senior year in medical school.
The law applicable to this situation will be found in Code Sections 32-146 and 32-147. The obvious purpose of the law is to furnish assistance to a student in medical college in exchange for an agreement to subsequently practice medicine for four years in a rural county where more doctors are needed. The law provides that the scholarship from each district shall be in the amount of $1,000.00 and shall be used as the Regents shall direct during the four years that the student is nerolled in the school of medicine. In my opinion, there is nothing to prevent the Regents from awarding the entire amount of the scholarship at any time during the period of instruction at the medical college.
Inasmuch as the purpose of the Act is to provide financial assistance in exchange for an agreement to practice medicine after graduation it would seem, from a practical standpoint, that the Regents would have a sounder investment in a senior medical student whose ability and industry have been established than in a freshman student who has yet to prove himself. There will also be less of a time lag between the outlay of money and the commencement of practice in the rural county. These considerations, of course, are. directed to the sound discretion of the Board of Regents and do not affect the matter of legality.
In my opinion, there is nothing in the law tp prevent the Regents from awarding such a scholarship at any time during the course of instruction of the recipient. The desirability of making the proposed award is a matter of policy to be determined by the Board.
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EDUCATION-University of Geo,rgi.a The Board of Regents of the University System controls the Veterinary School and if it deems proper may purchase vehicles to transport students to and from clinical experiments on farms.
November 15, 1948
Hon. Harmon W. Caldwell, President University of Georgia
I am pleased to acknowledge receipt of your letter requesting an official opinion as to whether the school of Veterinary Medicine of the Uninrsity of Georgia is authorized to purchase station wagons to transport students to and from farms for the purpose of studying and observing treatment of animals under clinical, i. e., farm conditions. You also sent me a copy of the requirements of the American Veterinary Medical Association, Council on Education, which sets forth in Paragraph 9 thereof, the essentials of an acceptable school. This requirement is as follows:
"9. In addition, the school should maintain an ambulatory clinic in charge of a clinical professor in which students are given regular opportunities to obtain experience in the treatment of patients under farm conditions."
You further state that the Board of Regents and the Veterinary School officials agree that it is necessary to have some method of transporting these students to and from the farms in order that the school may remain on the accredited list of standard veterinary schools. You also state that unless these motor vehicles are purchased, this school will lose its present standing, and the State funds invested in this project will lose a great part of their value in relation to the other units of the University System. The question presented is whether or not the law set forth in Chapter 40-20 of the Code prohibits the Board of Regents from purchasing station wagons to be used exclusively in transporting students to and from farms where clinical studies are made as a part of the curricula of the veterinary school.
A careful analysis of Chapter 40-20 of the Code of 1933, (Acts 1933, pp. 106-110) reveals that the object and purpose of this statute is to prohibit any department, institution, bureau or agency of the State from purchasing passenger automobiles to be used by officials and employees in the performance of their duties for the State government. Section 1 of the Act definitely prohibits the expenditure of State funds for the purchase of passenger carrying automobiles, except for the Governor.
The practice of the State government prior to the enactment of this law was to permit State departments and agencies to purchase passenger automobiles to be used in the performance of their official duties. This statute put an end to this practice.
Section 2 of the Act required all departments and agencies of the State to deliver any automobiles in their possession to the State 'Supervisor of Purchases, and he in turn in conjunction with the head of the department involved, was authorized to sell these automobiles in accordance with the terms of the Act.
Now that the old system of furnishing transportation to State officials and employees had been changed so that the departments and agencies no longer could purchase automobiles to be used in the performance of their official duties, it was necessary for the legislature to create a new system to be used
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in lieu of the one being discarded. Section 3 sets up the new system, by providing a rate of mileage "to be
paid to officers, officials, or employees of the various departments, institutions, boards, bureaus, and agencies, as traveling expense when traveling in the service of the State for any agency thereof by automobile." It was provided that the rate of mileage should not exceed five cents per mile.
Section 4 of thE:' Act provided that "all officers, officials, or employees of the State and of the various departments, institutions, boards, bureaus, and agencies of the State, required to travel by automobile in the performance of their official duties, shall themselves furnish out of their own personal funds such automobile as may be necessary for their official use, and shall receive, for the use of such automobile and as expense of operating the same, such mileage allowance as is fixed by the State Supervisor of Purchases in conjunction with head or heads of various departments and bureaus." Section 5 of the Act then sets forth the procedure to be followed in obtaining such mileage payments, and requires that "the State Supervisor of Purchases shall have authority to inquire into the correctness and legality of such mileage tickets", and that when the same has been approved it shall be paid "to the officer or employee making the same from the general funds appropriated for such department or institution."
Section 6 provides that "the head of each department, board, agency, or institution of this State shall file with the State Supervisor of Purchases a list of all officials and employees who are entitled to receive compensation under the provisions of this Act ... and no employees or officials of any department or institution of this State shall receive any compensation under the provision of this Act whose name has not been so enrolled."
We have cited the above provisions of the Act in order to illustrate the legislative intention in enacting such a statute. This cardinal rule of construction was stated in Georgia Railroad Company vs. Wright, 124 Ga., at page 626, as follows:
"It is well recognized that in construing a statute the court may look to the old law, the mischief and the remedy;"
Applying the above rule of construction to the question under consideration, we must come to the conclusion that the legislature intended to stop the old practice of purchasing passenger automobiles for State officials and employees, and in lieu thereof requiring such officials and employees to furnish their own automobiles with the State paying for the actual mileage used at a rate not to exceed five cents per mile. This statute is directed at the practice of State departments and agencies supplying passenger automobiles for their officers and employees. It is always permissible to look at the history of legislation and to the conditions existing at the time of its adoption, in order to clearly ascertain the legislative intent on the subject. See, Acree vs. State, 122 Ga. p. 144. This principle of law is also embodied in Code Section 102-102 (9) as follows:
"In all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil and the remedy. . . ."
It is true that if Section 1 of the Act were considered separate and distinct from the other provisions of the Act, a State agency would be prohibited from purchasing a passenger carrying automobile to be used exclusively for clinical
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school purposes, even though this vehicle would in nowise be used by officers and employees of the State in the discharge of their official duties. However, it is necessary to construe Section 1 of the Act in its relationship to the other sections of this legislative enactment. When Section 1 is construed in connection with Sections 3, 4, 5 and 6 of the Act, it becomes very apparent that Sitate agencies are prohibited from purchasing passenger automobiles to be used by State officials and employees in the performance of their duties. Sections of an Act should not be interpreted in an isolated manner apart from the other provisions of the Act relating to the subject dealt with by the legislation. This principie of law is stated by our Supreme Court in the case of City ot1 MOlcon vs. Georgia Power Company, 171 Ga., p. 40, as follows:
"Legislative intent is to be arrived at by a consideration of the statute or ordinance in its entirety. . . ."
In keeping with the above principles of law, I am of the opinion that Chapter 40-20 (Acts 1933, pp. 106-110) does not in any way prohibit the Board of Regents of the University System of Georgia from purchasing passenger carrying vehicles for the sole and exclusive purpose of being used to transport students to and from farms where experiments in connection with the school curricula are being conducted. These passenger carrying vehiclos cannot be used by officers and employees of State agencies in the performance of their official duties in contravention of the above statute. We recognize the distinction between officers and employees of the State government and students of the University System.
Under Paragraph 1 of Section 4 of Article 8, the Constitution of Georgia provides in part as follows:
"There shall be a Board of Regents of the University S~stem of Georgia, and the government, control, and management of the University System of Georgia and all of its institutions in said system shall be vested in said Board of Regents of the University System of Georgia...."
Under the above constitutional provision, the Board of Regents of the University System of Georgia is authorized to control and manage the University System which includes the Veterinary School. If the Board determines that it is necessary to maintain an ambulatory clinic in order to carry out the duties and responsibilities of the Veterinary School, then we see no reason why proper equipment should not be purchased by the State for this project.
If for any reason the Board of Regents of the University Systom of Georgia should deem it to be to the best interests of the Veterinary School, it could either purchase passenger carrying vehicles to transport students to and from their clinical experiments on the farms, or the Board might decide to enter into a special contract to have this service performed.
It is clear that if a contract of this character is valid, and I feel that it would be, then it likewise follows that the Board of Regents would be authorized to purchase its own vehicles for this purpose.
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EDUCATION-University of Georgia Athletic coaches employed by Regents of University System are not "teachers" as contemplated by Teachers Retirement System.
December 29, 1948 Hon. Blake R. Van Leer, President Georgia Institute of Technology
I am pleased to acknowledge your letter of December 27th, in which you request an official opinion on the question of whether athletic coaches employed by the Regents of the University System, Inc., are entitled to be classified as teachers in order to come under the provisions of the Teachers' Retirement System.
On April 25, 1947, I rendered an official opinion to Hon. J. L. Yaden, Secretary-Treasurer of the Teachers' Retirement System of Georgia, to the effect that members or employees of the Georgia Tech Athletic Association are not "teachers" entitled to the benefits of the Teachers' Retirement Act. This is a rather lengthy opinion, and is set forth on pages 213-215 of the OPINIONS OF THE ATTORNEY GENERAL for the years 1945 through 1947. In view of your request for a ruling on the above question, I have reviewed this opinion very carefully and I have come to the conclusion that this opinion represents a correct interpretation of the law. I must therefore decline to alter or amend this official opinion.
I would suggest that you read this opinion, for I feel sure that you will agree with me as to its correctness. You will note that the last sentence of my opinion reads as follows:
"Should it be desirable that they (employees of the Athletic Association) should come within the Teachers' Retirement System, the Act should be amended so as to permit them to come under the terms of the Act as was provided in the case of members of the Georgia Educational Association."
I am of the very definite opinion that the only way emplo.yees of the Athletic Association can come within the purview of the Teachers' Retirement Act is for the Legislature to pass an appropriate amendment to this enactment. Of course I can at once appreciate the many questions involved in making a determination as to whether or not it is advisable to try to pass such amendment. This is a matter however, to be determined in the sound discretion of the administrative officials and ultimately the General Assembly.
EDUCATION-Veterans Ed.ucation Program Where, under the Veterans Education Program some teachers are paid by the Veterans Administration through the Georgia State Department of Education and some through the local Boards of Education, the agency making the payment shall pay the matching fund.
August 11, 1948 Honorable J. L. Yaden, Secretary-Treasurer Teachers' Retirement System of Georgia
I have your letter of July 14 in which you request my opinion on the following situation:
Under the Veterans' Education Program in Georgia some of the teachers
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are paid by the Veterans Administration through the Georgia State Department of Education; some of the teachers' salaries are paid by the Veterans Administration through the local boards of education where the schools are operated.
You request my opinion as to which agency is the proper one to pay the 6.83 o/o matching fund as required by Georgia Code Annotated Section 32-2921.
Paragraph 3 of the above mentioned Section requires that "employers" of members of the System shall contribute a percentage of the earnable compensation of the members to the fund. By determining what agency is the "employer" of any member we may determine what agency is required to make' the contribution.
Georgia Code Annotated, Section 32-2901, paragraph 4, provides as follows: " 'Emplo,yer' shall mean the State of Georgia, the county or independent board of education, the State Board of Education, the Board of Regents of the University System of Georgia, or any other agency of and within the State by which a teacher is paid." (Boldface supplied). The above Section would seem to define an employer of a teacher as that agency "by which a teacher is paid." Therefore, it is my opinion that when a teacher is paid by the Georgia State Department of Education, that Department should make the contribution; when a teacher is paid by a local board of education, the local board should make the contribution. I am assuming that the payment by the federal agency is not to the individual teacher but is to the general fund of the employing agency in each case.
ELECTIONS-Candidates-General Assembly (Unoffidall) A candidate for the General Assembly need not run in the county primary.
January 13, 1948
Hon. G. B. Moore The Sparta Ishmaelite Hanco*ck Publishing Co., Inc.
I have your letter of January 5, 1948, in which you request my opinion on the following question:
Is it legally necessary for candidates for the General Assembly to run for nomination in the county primary?
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone other than the Governor and the heads of the various State Departments. Therefore, the opinion expressed herein is strictly a personal one and is entirely unofficial and is not to be considered as binding upon anyone in any way. May I also add that the opinion expressed herein is not for publication. I am rendering you the opinion purely and simply as a matter of interest to you.
Section 34-3203 and Section 34-3217 of the Georgia Code of 1933, annotated, provide as follows:
"34-3203. Whenever any political party shall hold primary elections for nomination of candidates for office, such party or its authorities shall cause all candidates for nominations for Governor, Statehouse officers, members of Congress, United States Senators, judges of the Superior Courts, Justices of the Supreme Court, Judges of the Court of Appeals, solicitors general and members of the General Assembly to be voted on one and the same day throughout
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the State at such date as may be fixed by the State executive committee of such party. . . ."
"34-3217. Nothing in this law shall be construed to provide or require any definite unit of election for candidates for nominations for members of Congress, judges of the Superior Courts, solicitors .general, members of the General Assembly and county officers; and this law shall not be construed to require a primary for any of the last named officials, except in their respective districts, circuits or counties, as provided by law: Provided, however, that primaries for nomination of members of Congress, judges of the Superior Courts, solicitors general and members of the General Assembly shall be held on the date named in Section 34-3212 for primaries for United States Senator, Governor, Statehouse officers, Justices of the Supreme Court and Judges of the Court of Appeals."
In my opinion, the above two Code Sections are self-explanatory. There is no statute which directly forbids candidates from running in county primaries for the General Assembly, but if they do so, the results of that primary are a mere nullity and have no legal effect whatsoever. Candidates who do not run in county primaries are certainly not barred from running in the State primary provided for by the above quoted Code section. I realize that the practical effect of a successful candidacy in the county primary is important, but legally it is without any weight.
ELECTIONS-Candidates-State Se,nator (Unofficial)
1. The State Executive Committee of the party sets the time for qualifying in its State Primary for State Senator. 2. All candidates for State Office must file notice of candidacy at least 90 days before the general election.
February 2, 1948 Honorable L. H. Oden
This will acknowledge receipt of your letter of January 24, 1948' requesting the Attorney General to advise you in regard to the following questions:
(1) Whether the Senatorial Committee of the 46th Senatorial District or the State Committee sets the time for qualifying for State Senator in the State Primary?
(2) Last date set for qualifying dead-line in State election? (3) Is the regular Democratic Primary set for July 14th? Your request has been referred to me for reply due to the Attorney General's absence due to his being called to the bedside of his mother who is in a very serious condition. The Attorney General and his assistants are not authorized to render official opinions to anyone except the Governor and the heads of the Executive Departments of the State, and then only upon matters involving the interests of the State; however, I am pleased to be of any help I can to you, and anything that I may say in response to your inquiry must be considered as unofficial and i~ given as information only and is not binding upon anyone in any manner whatsoever. Section 34-3608 of the Pocket Supplement of the 1933 Annotated Code of Georgia provides:
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"Time for filing notice of candidacy in general election. Time of holding primaries and conventions.-In order to allow more adequate time for the participation of members of the military in elections and party primaries, the following provisions are enacted in lieu of those now provided by law:
"1. All candidates for national and state offices, or the proper authorities of the political party nominating them, shall file notice of their candidacy, giving their names and the offices for which they are candidates, with the Secretary of State, at least 90 days prior to the regular election. All candidates for district and county offices "ei:ther by themselves or by the proper authorities of the party nominating them, shall file notice of their candidacy with the ordinary of the county at least 90 days before the regular election.
"2. Whenever any political party shall hold primary elections for nomination of candidates for office for Governor, State house officers, Members of Congress, United States Senators, judges of the superior courts, Justices of the Supreme Court, Judges of the Court of Appeals, solicitors general, and members of the General Assembl~; which are by law voted on one and the same day throughout the State, said primary may be held on such date as may be fixed by the State executive committee of such party, and the State executive committee is authorized to fix such time for the said primary, second primary, or party convention as it may determine without respect to the time now provided by law as the date on which the said primary, second primary, or convention shall be held. (Acts 1944, Ex. Sess., pp. 2, 4.)"
Section 34-1302 of the Pocket Supplement of the 1933 Annotated Code of Georgia provides in part:
"34-1302. Elections, how and when held.-The day of holding such elections shall be Tuesday after the first Monday in November in the even-numbered
years; * * *"
Under the above Code Section the gentral election in 1948 would be on November 2nd. I understand that July 7, 1948 has been designated by Mr. Morris as the State Democratic primary date, however, as you know, there is now pending in the Supreme Court of Georgia the case of Peters vs. Morris, which will determine the chairmanship of the State Democratic Executive Committee. This decision should be rendered shortly and will clarify this situation. When the decision is handed down by the Supreme Court then the date or dates can be more definitely determined.
I am attaching hereto a copy of an opinion rendered by Honorable Ellis Arnall when he was Attorney General, in which he quotes his predecessor, Honorable M. J. Yeomans, on the question of county primaries, which may be of interest and help to you. You will note that Section 34-3203 referred to is amended by Section 34-3608 above referred to, and which changes the period of 60 days to 90 days.
I believe that the above information answers the questions asked by you.
December 28, 1939
Ron. Casey Thigpen Representative from Glasco*ck County
I have your letter of December 23rd asking my opm10n as to the proper time to hold primary elections for nomination of candidates for members of the House of Representatives.
Section 34-3203 of the 1933 Code provides as follows:
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"34-3203. (129) Time for holding election.-Whenever any political party shall hold primary elections for nomination of candidates for office, such party or its authorities shall cause all candidates for nominations for Governor, Statehouse officers, members of Congress, United States Senators, judges of the superior courts, Justices of the Supreme Court, Judges of the Court of Appeals, solicitors general and members of the General Assembly to be voted for on one and the sam'e day throughout the State at such date as may be fix,ed by the State executiv'e committee of such party, except where a second primary shall have been called by the authorities of said party for any particular office on some subsequent day, through failure to make, for any cause, a valid nomination at the first primary, or in consequence of a contest: Provided that said executive committee shall not fix the date for the said ge.neral primary earlier than 60 days before the date of the general State eledion in November: Provided further, that this section shall not have the effect of requiring a primary for judges and solicitors except in their respective circuits, or for members of the General Assembly except in their respective counties, or for State senators except in their counties, as the authorities of said party may authorize or direct." (Emphasis added.)
In ruling on this same question under date of June 6, 1934, my distinguished predecessor, the late Honorable M. J. Yeomans, held that a candidate for representative nominated at a county primary held on any date other than that fixed by the State Executive Committee under the provisions of the above quoted Code section could not be the legal nominee of the Democratic Party and would not be entitled to have his name placed on the ticket at the November electiou as the nominee of the Democratic Party. In the opinion rendered by Judge Yeomans on June 6, 1934, he stated in part as follows:
"It has been the custom in some counties, usually followed in the year in which all county officers are nominated, to hold preferential primary elections for representative at the same time as the primary is held for county officers. This action, however, is not binding and a candidate for representative nominated at such an election is not and cannot be the nominee of the party unless he is again voted on and again nominated in the regular State Primary. The County Executive Committee might hold a preferential primary for representative on June 20, 1934, but the result would not be binding on anyone and th~ candidate nominated in the primary would not be the nominee of t::e party and could not be the nominee of the party unless he was again nominated at the September Primary."
Opinions of the Attorney General 1933-34, page 276 and 277.
ELECTIONS-Candidates (Unofficial) A candidate for public office must be a qualified, registered voter at the time of his election.
February 27, 1948 Miss Effie Marshall
This will acknowledge receipt of your letter of February 23, 1948, in which you ask several questions concerning the eligibility of a person for public office.
Under the law I am prohibited from giving opinions to anyone except the
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Governor and the heads of the various departments of State government, and then only upon matters in which the State is involved. However, in order to be of any assistance I can to you in helping you solve your problem, I am pleased to give you such information as I can, which is to be considered unofficial and not binding upon anyone in any manner whatsoever.
In regard to question one, I presume that when you use the expression "requirements" that you refer to the duties of a person serving on the County Board of Education. The duties of the County Board of Education are to be found in Chapter 32 of the 1933 Annotated Code of Georgia as amended by the Acts of 1946, pp. 206, 217. Since these citations contain a considerable amount of printed matter, I would suggest that you read Chapter 32 and the 1946 Acts above referred to in order to clearly understand the duties of the County Board of Education.
Usually a copy of this Code is in the Clerk of the Superior Court's office in the county court house, which no doubt the Clerk would be glad to let you read. If you are unable to do this, I would suggest that you write to Dr. M. D. Collins, State Superintendent of Schools, and request that he send you a copy of the laws regarding County School Boards, which I understand he will have within the next ten days, since a new edition is now in the hands of the printer, including the latest amendments.
In general, a person must be a resident of the State twelve months and the county six months prior to the next general election to be a qualified voter.
A person must be a qualified registered voter at the time of his or her election. A person does not have to be a property owner unless it is specifically provided by statute for the particular office.
To specifically determine if a person is eligible to hold a specific office, he or she should consult the statute creating such office and determine what qualifications the person may be required to have to hold said office. The same qualifications do not hold true for all public offices, and for this reason it is necessary to consult the specific statute creating a specific office to determine the qualifications one must have to legally hold said office.
Section 89 of the 1933 Annotated Code gives the eligibility and qualifications of public offices in general, and this chapter should be considered in connection with any specific statute for any specific office.
ELECTIONS-Candid.ates (Unofficial) Five Per Cent Law does not apply to candidates for county office.
May 27, 1948 Hon. M. F. Moody, Ordinary Appling County
I am pleased to acknowledge your letter of May 17th, in which you desire to know whether a person seeking to run as an independent for county commissioner in the November general election, is required to furnish you as Ordinary with a petition containing at least 5% of the registered voters who were eligible to vote in the last general election.
I imagine you have in mind Section 34-1904 of the Amended Code in propounding the above question. The pertinent part of this statute provides as follows:
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"All candidates for national and State offices, or the proper authorities of the political p-arty nominating them, shall file notice of their candidacy, giving their names and the offices for which they are candidates, with the Secre.tary of State, at least 30 days prior to the regular election, except in cases where a second primary election is necessary: Provided, further, that such candidate shall also file a petition for that purpose signed by not less than five per cent. of the registered voters in that territory or that such political party shall have cast no less than five per cent. of the votes in the last general election next preceding for the election of such officer; but nothing in this proviso shall be construed as applying to special elections. . .."
You will note that the above provisions apply to candidates for national and State offices and do not refer to candidates for county offices.
Under the Constitution and laws of this Sta-te, the Attorney General is. prohibited from giving official opinions to anyone other than the Governor and heads of the various departments of State pertaining to the interest of the State. You will therefore understand that this is not an official opinion, but is given purely as a matter of information and is not binding upon you, or anyone else.
ELECTIONS-Candidates-Governor (Unofficial) The returns from the gubernatorial election must be opened and published in the presence and under the direction of the General Assembly.
July 15, 1948 Hon. Norton D. Inlow The Southeast Georgian
I am pleased to acknowledge your letter of July 1st, in which you request information on the question of the date on which the Governor will take office, provided the Acting Governor is not elected.
Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the operation of the State government. You will therefore understand that this letter is not an official opinion, but is simply being sent as a matter of information.
You suggest in your letter that perhaps I have officially ruled on this question, but I wish to advise that this is incorrect. The pertinent provisions of the Constitution relating to your question are as follows:
"Section 2-3003. The returns for every election of Governor shall be sealed up by the managers, separately from other returns, and directed to the President of the Senate and Speaker of the House of Representatives, and transmitted to the Secretary of State, who shall, without opening said returns, cause the same to be laid before the Senate on the day after the two houses shall have been organized, and they shall be transmitted by the Senate to the House of Representatives."
Section 2-3004 reads as follows: "The members of each branch of the General Assembly shall convene in the Representative Hall, and the President of the Senate and Speaker of the House of Representatives shall open and publish the returns in the presence
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and under the direction of the General Assembly; and the person having the majority of the whole number of votes, shall be declared duly elected Governor of this State; but, if no person shall have such majority, then from the two persons having the highest number of votes, who shall be in life, and shall not decline an election at the time appointed for the General Assembly to elect, the General Assembly shall immediately, elect a Governor viva voce; and in all cases of election of a Governor by the General Assembly, a majority of the members present shall be necessary to a choice."
The above provisions of the Constitution seem to clearly require that the returns for Governor must be opened and published in the presence and under the direction of the General Assembly. Unless there is a special session, the next regular session of the General Assembly will be in January of 1949.
It is always my pleasure to render any information or assistance that I can to the citizens of our State with the understanding that the same is given only as a matter of accommodation and is not an official ruling.
ELECTIONS-Candidates (Unofficial) Candidates for county offices must qualify not later than 30 days prior to the primary, but party rules may fix an earlier date.
July 21, 1948 Hon. Sol A. Tatum, Ordinary
Attorney General Eugene Cook is away from the office on official business, and I am therefore taking the liberty of replying to your letter of July 17th in which you request information concerning the closing date for candidates to qualify for county offices in the coming primary.
Section 34-1914 of the Amended Code provides in part as follows: " ... All candidates for nomination for State and county offices including members of the General Assembly shall qualify as such candidates in accordance with the rules of the party calling the primary, not later than 30 days previous to the holding such primary, and the committee or other party authority of such party shall not fix any other or different time limit for qualifications: ..." The above provision of law permits the rules of the party to fix the closing date for the qualification of candidates, provided at least 30 days elapse between the date of qualification and the primary. The law in reference to the general election for district and county offices will be found in Section 34-1904 of the Amended Code, which provides in part as follows: " ... All candidates for district and county offices, either by themselves or by the proper authorities of the party nominating them, shall file notice of their candidacy with the ordinary of the county at least 15 days before the regular election, . . ." As previously stated, the above statute applies only to the general election. Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. You will therefore understand that this letter is simply an expression of the personal views of the writer, and is sent in the hope that the statutes referred to herein will be of benefit to you.
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ELECTIONS-Candidates (Unofficial) Notice of candidacy for State or National offices must be filed at least 30 days prior to regular election, and for district or county offices, 15 days prior thereto.
July 22, 1948 Hon. Len Taylor Clerk Superior Court
Attorney General Eugene Cook is away from the office at this time on official business, and for that reason I am taking the liberty of replying to your letter of July 19th, in which you request information concerning the qualifying date for candidates who desire to run for office in the general election.
Section 34-1904 provides in part as follows: " ... All candidates for national and State offices, or the proper authorities of the political party nominating them, shall file notice of their candidacy, giving their names and the offices for which they are candidates, with the Secretary of State, at least 30 days prior to the regular election, except in cases where a second primary election is necessary: Provided, further, that such candidate shall also file a petition for that purpose signed by not less than five per cent. of the registered voters in that territory or that such political party shall have cast no less than five per cent. of the votes in the last general election next preceding for the election of such officer; but nothing in this proviso shall be construed as applying to special elections. The names of such candidates shall be filed with the Secretary of State as soon as possible after the determination of the result of said second primary. All candidates for district and county offices, either by themselves or by the proper authorities of the party nominating them, shall file notice of their candidacy with the ordinary of the county at least 15 days before the regular election, ..." Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. I am glad however, to cite the Code Section quoted above, and hope that it will be of benefit to you.
ELECTIONS-Candid,ates (Unofficial) Because of ambiguity in Five Per Cent Law relating to candidates for county offices, the Ordinary has some discretion in interpreting intention of legislature.
August 25, 1948 Hon. T. N. Holcombe, Ordinary Lowndes County
I am pleased to acknowledge receipt of your letter of August 23rd, in which you state that an independent candidate may offer to run in the November general election for a county office. You desire to know whether or not you will have to print his name on the ballot without such a person obtaining a list of 5 o/o of the qualified voters of the county.
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Under the Constitution and laws of this State, the Attorney General is
prohibited from rendering official opinions to anyone other than the Governor
and heads of the various departments of State upon matters pertaining to the
operation of the State government. I am therefore precluded from giving you
an official ruling on the above question. However, it is a pleasure for me to
refer you to the applicable provision of law and give you my personal view
concerning the same.
Section 34-1904 of the Amended Code reads in part as follows:
" ... All candidates for national and State offices, or the proper authori-
ties of the political party nom~nating them, shall file notice of their candidacy,
giving their names and the offices for which they are candidates, with the
Secretary of State, at least 30 days prior to the regular election, except in
cases where a second primary election is necessary: Provided, further, that
such candidate shall also file a petition for that purpose signed by not less
than five per cent. of the registered voters in that territory or that such
political party shall have cast no less than five per cent. of the votes in the
last general election next preceding for the election of such officer; but noth-
ing in this proviso shall be construed as applying to special elections. The
names of such candidates shall be filed with the Secretary of State as soon as
possible after the determination of the result of said second primary. All candi-
dates for district and county offices, either by themselves or by the proper
authorities of the party nominating them, shall file notice of their candidacy
with the ordinary of the county at least 15 days before the regular election...."
It is true that the language of the above statute is not altogether clear as
to whether the 5% applies to the county election, or only to national and State
offices. The purpose of the above law as you know, was to prevent persons
with little or no following encumbering the official ballot. There is no law
which prevents the voters from writing in the name of any person they may
desire to vote for. This can be done by simply striking the name printed on
the ballot. It would appear that since the language employed by the legislature
in this statute is somewhat vague as to whether the 5% feature applies to
county offices, you, as ordinary, would be given some discretion in seeking to
pl,ace your own interpretation upon the intention of the legislature in passing
this law. It would also be my suggestion that you consult your county attorney
in order to get the benefit of his view in this matter, since he can give you an
official ruling on the question.
The appellate courts of Georgia have not ruled upon the question you ask,
and I am therefore unable to cite you any judicial authority on this issue. I
regret that we do not have at our command some positive means of giving you
a direct answer to this perplexing question.
ELECTIONS-Candidates-County Commissioner Provisions with reference to the ti~e and manner in which independent candidates should qualify for county offices are contained in Sec. 34-1904, Georgia Code.
October 4, 1948
Hon. W. 0. Harrell, Ordinary I am pleased to acknowledge your letter of September 28th, in which you
ask for information concerning the requirements for an independent to have
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his name placed on the general election ballot as a candidate for county commissioner.
Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. I am glad however, as a matter of information, to refer you to certain provisions of law which will give you the desired information.
Section 34-1904 of the Amended Code (Pocket Part Supplement) sets forth certain provisions in reference to the time and manner of candidates qualifying for county offices.
Since you do not ask for any particular information on this subject, I also refer you to the general provision set forth in Code Section 89-101, which applieS/ to the eligibility and qualifications of office holders. Both of these sections are rather lengthy, and as I am sure that you have these provisions of the Code available, I have not copied same. I believe that these provisions of law set forth in a general way the requirements for a candidate who desires to run for a county office in the general election. If you have a specific question in mind, write me and I will be glad to give you information on that particular issue. I might also suggest that you confer with your county attorney in reference to this matter, since he is in a position to give you an official opinion in the premises.
Even though I cannot render official opinions to county officers under the law, I am always glad to give any information or service which I can to our local officials.
ELECTIONS-Candidates (Unofficial) In event of death of Democratic ncninee for Solicitor of City Court, manner of filling vacancy determined by County Democratic Executive Committee.
October 5, 1948 Hon. Bert Smith, Ordinary Evans County
I am pleased to acknowledge your letter of September 30th, in which you state that the nominee of the Democratic Party for the office of Solicitor of the City Court of Claxton died prior to the date of the general election. You desire information as to whether or not any other person can qualify as the Democratic nominee for the general election, and have his name placed on the ballot as such.
I think your question is answered by the following provision of Section 34-1904 of the Amended Code, which provid-es as follows:
" ... In the event of the resignation or death of any nominee of any political party prior to the regular election, at which the name of said nominee is to appear on the official ballot, said vacancy in nomination shall be filled in such manner as may be determined by the proper authorities of such party. . . ."
It would seem from the above provision of law that the County Democratic Executive Committee would have some discretion in determining the manner for filling such vacancy in the regular election.
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Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. I am glad however, to refer you to the above provision of law as a matter of information, and trust that same will be helpful to you in solving this problem.
ELECTIONS-Candidates (Unofficial) In counties having secret ballot law Ordinary is provided with procedure for listing persons without party nomination.
November 20, 1948
Judge J. B. Lee I am pleased to acknowledge your letter of November 18, 1948 in which
you seek information on the following question: "I did not run for Justice of the Peace in the Democratic Primary held for
the 1231st district of this county, but would like to be on the ballot on December 4, 1948. In that event, would the person that was nominated by the Ware County Democratic Executive Committee be put on the ballot as a Democratic nominee and would I have to be put on as an Independent?''
Under the law I am not authorized to render official opinions except to the Governor and the Heads of the various State Departments, and then only upon matters in which the interest of the State is involved. Therefore, anything that is said in this letter must be taken as unofficial and binding upon no one in any manner whatsoever. Notwithstanding these limitations, I am always glad to be of any assistance th:::t I can to the officials of our counties.
Code Section 34-2704 provides : "The laws governing the election :::;)r members of the General Assembly shall govern in the election for Justice of the Peace, whenever they may be applied, and not inconsistent with this chapter." While you do not so state in your letter, I assume your county has adopted the Australian or secret ballot law. In that event, the following provisions of the 1933 Annotated Pocket Supplement would apply to your question. Section 34-1904 provides in part: "In all elections other than primary elections held under the auspices of a political party, it shall be the duty of the Ordinary to provide and furnish at
the expense of the county * * * official ballots for all such elections, and hav-
ing printed thereon, in separate columns, the names of the candidates of each political party, designating the names of the political party to which they belong, and also the names of any other candidates for the offices to be filled at
such election * * * provided, however, it shall not be the duty of said officials
to place the name of any candidate on said official ballots, unless notice of the
candidacy shall be given in the following manner, to-wit: * * * all candidates
for district and county offices, either by themselves or by the proper authorities of the party nominating them, shall file notice of their candidacy with
the Ordinary of the county at least fifteen days before the regular election * * *
said officers shall also have printed on said ballots such language as may be, necessary for the voters to exprel';s their desires as to any question or matter which may be submitted at any such election. In all other particulars said hal-
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lot shall be arranged, printed, and prepared for regular elections as provided in Section 34-1903".
Under the above statutory provisions, the Ordinary of your county is provided with the procedure and method of listing candidates or political parties and candidates running without party nomination, in those counties of the State having adopted the Australian or secret ballot law.
Arranging the ballot in keeping with the above statutory provisions and providing such language as may be necessary for the voter to properly express his desires is one which addresses itself to the sound discretion of the Ordinary.
ELECTIONS-Candidates-Justice's of the Peace (Unofficial) Relates to time within which to qualify as a candidate.
December 1, 1948 Miss Thelma Spinks
This will acknowledge your letter of November 29th, in which you ask that I render an opinion relating to the last day on which you may qualify as a candidate for re-election as Justice of the Peace.
I regret that under the law I cannot give you an official ruling on this question, since the Attorney General can render official opinions only to the Governor and heads of the various departments of State upon matters pertaining to the operation of the State government. I would suggest that you consult your county attorney, since he is in a position to officially advise you in the premises.
As a matter of information, I direct your attention to Section 34-1904 of the Oumulative Pocket Part Supplement of the Code, and I trust that this provision of law will be beneficial to you b a study of this question.
ELECTIONS-Constitutional Officen Lists Constitutional officers as set out in Code Section 2-3101.
July 26, 1948 Hon. Ben W. Fortson, Jr. Secretary of State
Attorney General Eugene Cook is away from the office on official business, and in his absence I am taking the liberty of replying to your letter of July 19th in which you request an opinion as to which of the State officers should. be classified as constitutional officers, in order that the election returns may be canvassed by the General Assembly. Since this letter is being sent in the absence of the Attorney General, you of course understand that anything said herein is subject to the approval of Mr. Cook upon his return to the office.
Section 2-3101 of the Constitution provides: "The Secretary of State, Attorney General, State School Superintendent, Comptroller General, Treasurer, Commissioner of Agriculture, and Commissioner of Labor shall be elected by the persons qualified to vote for members of the General Assembly at the same time, and in the same manner as the Governor. The provisions of the Constitution as to the transmission of the returns of the election, counting the votes, declaring the results, deciding when
162
there is no election, and when there is a contested election, applicable to the election of Governor, shall apply to the election of the above .named executive officers; they shall be commissioned by the Governor and hold their offices for the same time as the Governor."
It is clear that all of the above stated officers are classified as constitutional officers, and their election shall be carried out in the same manner as that of the Governor.
Section 2-3003 provides in reference to the election of Governor, the following:
"The returns for every election of Governor shall be sealed up by the managers, separately from other returns, and directed to the President of the Senate and Speaker of the House of Representatives, and transmitted to the Secretary of State, who shall, without opening said returns, cause the same to be laid before the Senate on the day after the two houses shall have been organized, and they shall be transmitted by the Senate to the House of Representatives."
Section 2-3007 of the Constitution provides in reference to the LieutenantGovernor, the following:
"There shall be a Lieutenant Governor, who shall be elected at the same time, for the same term, and in the same manner as the Governor. . . ."
The above provision of the Constitution likewise makes it clear that tha> Lieutenant Governor is classified as a constitutional officer and is elected in the same manner as the Governor and the other executive officers referred to in Section 2-3101, supra.
Section 2-2703 of the Constitution, in reference to the Public Service Commission, provides:
"There shall be a Public Service Commission for the regulation of utilities, . . . The qualifications, compensation, filling of vacancies, manner and tim<e of election, power and duties of members of the Commission, including the chairman, shall be such as are now or may hereafter be provided by the General Assembly." (Emphasis supplied)
The General Assembly has made the following provision in reference to the election of the members of the Public Service Commission. Section 93-201 provides in part as follows:
"The Georgia Public Service Commission shall consist of five members to be elected by the qualified voters of the whole IState who are entitled to vote for members of the General Assembly, said ele,ction to be held under the same rules and regulation's as apply to the elec;tion of Governor." (EmphasiS supplied)
It seems from the foregoing statute, together with the constitutional provision above cited, that members of the Public Service Commission should be elected in the same manner as the Governor.
While the Justices of the Supreme Court and the Court of Appeals are constitutional officers and their respective positions are provided for therein, they are nevertheless not required to be elected under the same procedure as that applying to the office of Governor. Section 2-3703 of the Constitution provides:
"The Justices aforesaid shall hold their offices for six years, and until their succes8ors are qualified. They shall he elected by the people at the same
168
time and in the same manner as members of the General Assembly: . . ." (Emphasis supplied)
I also specifically call your attention to the fact however, that vacancies on the appellate courts are required to be filled in accordance with the latter part of Section 2-3703 of the Constitution, which provides as follows:
"In case of any vacancy which causes an unexpired term, the same shall be filled by executive appointment, and the person appointed by the Governor shall hold his office until the next regular election, and until his successor for the balance of the unexpired term shall have been elected and qualified. The returns of such elecltions shall be m.ade to the Secretary of State, who shall certify the result to the Govern.or, and COmmission shall is,sue accordingly."
Since your letter is general in nature and does not point out any specific question in regard to particular constitutional officers, I will assume that the constitutional officers referred to above are those which you had in mind in making this inquiry.
ELECTIONS-County Officers (Unofficial) A County Commissioner mMst have two years residence in the county and be a qualified voter. He is elected by the duly qualified voters of his county or district.
May 27, 1948 Hon. P. H. Ricks
I am pleased to acknowledge your letter of May 22nd, in which you request an unofficial opinion on the constitutional method to be followed in selecting county commissioners for Treutlen County.
Your question is answered by Par. I of Sec. 2 of Art. 11 of the State Constitution which provides as follows:
"The county officers shall be elected by the qualified voters of their respective counties or districts, and shall hold their office for four years. They shall be removed upon conviction for malpractice in office; and no person shall bet eligible for any of the offices referred to in this paragraph unless he shall have been a resident of the county for two years and is a qualified voter."
The above provision of the Constitution definitely requires county officers to be elected by the qualified voters of their respective counties or districts. County commissioners are county officers. Any statute in conflict with the above provision would necessarily be void and of no effect.
Under the Constitution and laws of this State, the Attorney General can render official opinions only to the Governor and heads of the various departments of State upon matters affecting the interest of the State. Therefore, anything said in this letter is unofficial and is not binding upon you, the county officials, or anyone else, but is simply being given as a matter of information.
ELECTIONS-General Assembly (Unofficial) Vacancy in General Assembly must be filled by special election.
September 21, 1948 Hon. A. S. Dodd, Jr. Attorney at Law
I am pleased to acknowledge your letter of September 11th, together with your supplemental communication of September 16th, in which you ask whether
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'a candidate who is elected in the November 2nd general election will be eligible to be seated during the special session where the present legislative post is vacant.
In your last letter you point out that Governor Thompson has called a special election in several counties to fill the existing legislative vacancies, and you desire to know whether the person elected in this special election shall serve in the special session now proposed to be called sometime during November of this year.
"Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the operation of the State government. I am always glad however, to render information to the members of the General Assembly whenever called upon. This letter should therefore be construed as being sent purely as a matter of information.
Article 3, Section 4, Paragraph I of the State Constitution provides as follows:
"The members of the General Assembly shall be elected for two years, and shall serve until the time fixed by law for the convening of the next General Assembly."
In keeping with the above provision of the Constitution, the person who was elected in 1946 would serve until the time fixed by law for the convening of the next General Assembly in January of 1949.
A person elected in the November general election and who did not otherwise run in the special election called by the Governor for the purpose of filling the unexpired term, would take office as provided by Paragraph 3, Section 4, Article 3 of the Constitution, which provides in part as follows:
"The General Assembly shall meet in regular session on the second Monday in January 1947, and biannually thereafter on the same day until the date shall be changed by law."
The above provisions of the Constitution are clear, and definitely provide that the candidate elected in the general election shall take office on the second Monday in January of the next year. Should a vacancy exist in the legislature because of the death, resignation or disability of the person who was duly elected and qualified to serve in the 1947 and 1948 General Assembly, this vacancy is required to be filled as provided by the Constitution and laws of this State as follows:
"The Governor shall issue writs of election to fill all vacancies that may happen in the Senate and the House of Representatives, " (Par. 12, Section I, Article 5)
Section 34-1701 of the Code provides: "Elections to fill vacancies for members of the General Assembly shall take place under the authority of a writ of election issued by the Governor to the ordinary of the county where the vacancy occurs, who must order and publish a date for holding the same by giving at least 20 days notice." In view of the above provisions of law, the person who is elected in the special election to fill the vacancy now existing, would be entitled, if otherwise qualified, to serve at the special session of the legislature which is scheduled to be held in November of this year. The candidate elected in the November general election, unless he was also a candidate in the special election for the
165
unexpired term, would take office in the regular session to be held on the second Monday in January, 1949.
As stated above, this letter is not to be construed as an official opinion, but is simply being sent to you as a matter of information with the hope that the provisions of law contained herein will answer your inquiry. The fact that Bulloch County has a special Act requiring candidates to choose a particular encumbent to run against would not, in my personal opinion, militate against the laws set forth herein.
I also call your attention to the fact that under the Constitution, each House of the General Assembly is the final judge of the election, returns, and qualifications of its members. Should there be any question relating to any of these matters, the same would be determined by the House of the General Assembly directly involved. In this connection, Paragraph I of Section 7 of Article 3, provides in part as follows:
"Each House shall be the judge of the election returns, and qualifications of its members. . . ."
ELECTIONS-Primary
Neither the Governor, Secretary of State nor Attorney General has any
authority to utilize the general election machinery for the conduct of a
primary for any political party.
Honorable M. E. Thompson Governor of Georgia
March 4, 1948
This will acknowledge receipt of your letter of February 28, 1948, requesting that I give you an official opinion on the questions propounded to you in a letter from Honorable Wilson Williams dated February 28, 1948, which you enclose with your request.
Mr. Williams in his letter states that the Republican State Central Committee of Georgia issued a call for a Presidential Preference Primary to be held on the second Tuesday of May, 1948, and that the Committee, by resolution, calls upon you to do the following:
"Utilize the general election machinery of the State in conducting the primary and designating the Governor, the Attorney General, and the Secretary of State to canvass the returns and certify the results."
Mr. Williams further states that the Committee requests that you, as Governor, do the following:
"Apprize it of the estimated cost of conducting the primary and when you have been supplied such estimated sum that you, in your official capacity, call upon the several Ordinaries of the State to conduct the primary in the same manner in which a general election is conducted."
The duties of the Governor, Secretary of State, and Attorney General are defined by the Constitution and laws of Georgia. See Art. V, Sec. I, II; Art. VI. Sec. X, Par. II of the Constitution of Georgia, and Chapter 40-101, 108; 40-201, 210; 40-301, 312; 40-501, 504; 40-601., 604; 40-701; 40-801, 808; 40-1607' 1620 of the 1933 AnnotatE:d Code of Georgia and Pocket Supplement thereto. Reference therein to election rights and duties refer to general elections and
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these laws cannot be used by State officials to conduct primaries of any kind without specific legal authority.
The Governor, Secretary of State, and Attorney General have no authority or responsibility, individually or jointly, under the law, to supervise, or direct anyone else to supervise, a primary of any political party, organization, or association, and there is no statute which requires, or permits, the use of the general election machinery of the State to conduct a primary of any kind for any political party, association or organization.
The various provisions of Chapter 34-32 of the 1933 Annotated Code and the Pocket Supplement thereto provides the manner and method of conducting primaries in this State.
It is my opinion that neither the Governor, the Secretary of State, nor I have the authority or responsibility to utilize the general election machinery of the State to conduct any kind of primary for any political party, association or organization and to canvass the returns and certify the results thereof.
I am of the further opinion that you, as Governor, do not have the authority to call upon the several Ordinaries of the State to hold or conduct for any political party, association or organization a primary of any kind.
ELECTIONS-Primary (Unofficial) Ballots may not be removed from the polling place.
June 23, 1948
Hon. John E. Holliman, Chairman Upson County Democratic Executive Comm~ttee
I am pleased to acknowledge your letter of June 18th, in which you state that it has been customary in recent primary elections in Upson County for official ballots to be taken from the place of holding elections by designated election managers to the homes of qualified voters and there let the voter prepare his ballot, after which it is sealed and returned to the ballot box and counted in the tally of the election returns. You desire information as to whether or not such a practice complies with the law where the voter, because of a physical disability, is unable to come to the polls and vote.
I am precluded by law from rendering an official opinion to you on the above question. The law restricts the Attorney General from issuing official opinions to the extent that he can only officially rule on matters propounded by the Governor and heads of the various departments of State pertaining to the operation of the State government. You will therefore understand that this letter is unofficial and is not binding upon you, the election officials, or anyone else, but is simply being given as a matter of information and courtesy.
Section 34-801 of the Code of Georgia provides : "All persons whose names appear on the list of registered voters placed in possession of the election managers, and no others, shall be allowed to deposit their ballots according to law, at the voting precinct of the militia district or city ward in which they are registered, but not elsewhere, except as hereinafter provided. If in any city ward or militia district a voting precinct is not established and opened, the county registrars shall furnish to the election managers at the voting precinct at the court house, at the county site, the lists of registered voters of such ward or militia district, and persons whose names appear
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on such lists shall be allowed to vote at the voting precinct at the courthouse, at the county site, under the same rules that would have governed if a voting precinct had been established and opened in said ward or militia district."
Section 34-1905 of the Amended Code (Acts 1943, p. 290) provides in part as follows:
"Only one voter shall be allowed in a compartment of a room or booth or enclosure at a time, and immediately upon entering the booth or compartment the voter must procure a ballot from the managers, immediately prepare, vote the same and retire.... No voter shall at any time take or remove any ticket or ballot from the polling place. The managers shall preserve these written oaths or affidavits, and return them with the other election papers to the proper officials."
Section 34-1909 of the Code provides: "No person without said voting room, booth or enclosure shall in any manner, either by words or gestures, attempt to influence or interfere with any voter who is in said booth, room or enclosure preparing his ballot, nor shall any person enter or go in any booth, room, or enclosure while another person or voter is therein; nor shall any person commit any act of disorder or be guilty of any disorderly conduct in, near or at any of said voting rooms, booths, or enclosures." I believe from the above provisions of law you can ascertain the general purpose and intent of the legislature in reference to your inquiry. If these statutes are not entirely clear to you, it would be my suggestion that you confer with your county attorney who is in a position to make an official ruling in the premises.
ELECTIONS-Qualification& of Voters (Unofficial) Age for voting purposes is determined as of the date of the general election.
January 13, 1948 Hon. A. F. Turnell, Tax Collector Morgan County
I am pleased to acknowledge receipt of your letter of January lOth, in which you ask whether or not a person who is presently under 18 years of age, but who will be 18 by the date of the general election, will be qualified to vote in the primary to be held in April.
It is my understanding that all persons who will be 18 years of age or over at the time of the general election will be qualified to vote in primaries prior to this time. The age qualifications of the voters are determined as of the date of the general election in November.
Of course you understand that this is not an official opinion, but is simply my personal view on the subject.
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ELECTIONS-Qualific.ationa of Voters (Unofficial) An illiterate person may vote if he is of good moral character and understands the obligations of citizenship.
January 30, 1948 Ron. B. 0. Brinson, Chairman Board of Registrars Muscogee County
I am pleased to acknowledge receipt of your letter of January 20th, in which you ask whether or not a person who can neither read nor write is entitled to register and vote.
I think the answer to this question is supplied by Paragraph 4, Section I, Article 2 of the Constitution, which reads as follows :
"Every citizen of this State shall be entitled to register as an elector, and to vote in all elections in said State, who is not disqualified under the provisions of Section II of Article II of this Constitution, and who possesses. the qualifications prescribed in Paragraphs II and III of this Section or who will possess them at the date of the election occurring next after his registration, and who in addition thereto comes within either of the classes provided for in the two following subdivisions of this paragraph.
"1. All persons who are of good character and understand the duties and obligations of citizenship under a republican form of government; or,
"2. All persons who can correctly read in the English language any paragraph of the Constitution of the United States or of this State and correctly write the same in the English language when read to them by any one of th0 registrars, and all persons who solely because of physical disability are unable to comply with the above requirements but who can understand and give a reasonable interpretation of any paragraph of the Constitution of the United States or of this State that may be read to them by any one of the registrars."
It would seem that a person who was of good character and who understood the duties and obligations of citizenship under the republican form of government could qualify as an elector and be entitled to vote.
You ask who would sign the voters list for him. It would seem that he could sign his name with an "X" mark and have his name inscribed by someone else over his mark.
Under the Constitution and laws of this State, the Attorney General is prohibited from giving official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. It is a pleasure however, to refer you to the provisions of law applicable to your question as a matter of information.
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ELECTIONS-Qu.alifications of Voters (Unofficial) 1. Length of residence requisite to vote in county primary for county ofcials is fixed by party authorities. 2. (Acts 1945, Ga. L. 1945, p. 15-requirements for registration of voters.) 3. The residence of a person removing from one county to another is a question of fact, of which intention is the principal determining factor. 4. An absentee ballot must be requested not less than 10 days nor more than 60 days prior to either primary or regular election.
February 2, 1948
Honorable Gus Stark
Tax Commissioner of Walton County
This will acknowledge receipt of your letter of January 29, 1948 in which
you advise me that you have a county primary in Walton County on March 17
and that you desire that I render you an opinion on the questions propounded
therein.
''
Under the law I am not authorized to render official opinions to anyone except the Governor and the heads of the departments of the State, and then only upon matters involving the State's interests; however, I am pleased to be of any assistance to you that I can in helping you solve the problem confronting you by giving you such information as I can, upon the condition that anything that I say herein is to be considered unofficial and not binding upon anyone in any manner whatsoever.
The first question you propound is as follows: "(1) How long does a person have to be a resident of the county to vote on March 17?" The answer to this question depends upon the date fixed for the closing of the registration list by the County Democratic Executive Committee. Chapter 34 of the 1933 Annotated Code of Georgia sets forth the ni'ethod for conducting primary elections. Section 34-3209 provides as follows : "The party authorities shall, in all matters not provided for in this chapter, formulate rules and regulations for holding said primary election and for making returns thereof to the proper party authorities." Since the primary you refer to is for the nomination of county officials, it would appear that the above provisions of law apply and that the party authorities holding the primary may, in cooperation with the registrars and Tax Commissioner, formulate rules and regulations governing the time of the closing of the registration list to be used in said primary. There appears to be no restriction as to how long before the general election a county primary must be held. It is a matter left to the judgment of the County Democratic Committee. The next question you ask is as follows:
"(2) How long does a person have to be a resident of the State to vote on March 17?"
The Acts of 1945 (Ga. L. 1945, p. 15) gives the constitutional requirements for registration of voters. Also see Ga. Laws 1946, p. 42. You also ask the question:
"(3) If a person moves out of the county this week can he come back and vote on March 17?"
Whether or not a person retains his residence in a county is a question of fact, largely dependent upon the person's intention of giving up his residence
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or whether he is temporarily absent and intends to return. You also ask the question : " (4) How many days before the election does a person have to request
an absentee ballot? Does he have to request in writing or can a member of his family request for him in writing?"
Chapter 34 of the 1933 Annotated Code relates to voting by mail. The Acts
of 1944, Ex. Sess., p. 2, s relates to the registration and voting by men and
women in Military Service. As above stated this information is given purely in the hope that it will
be of some benefit to you in a discussion of the question raised. I would suggest that your county attorney be consulted in this matter since he is in a position to make an official ruling on the subject.
ELECTIONS-Qualific.ations of Voters (Unofficial) A voter who will have resided in the county six months at the time of the general election is entitled to vote in the county primary.
February 3, 1948. Hon. Florine C. Rainey, Tax Collector, Houston County
I have your letter of January 29th in which you request my opinion on the following question:
"Does a person have to live in a county six months before he can vote in either the county or state primary"?
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the heads of the various State Departments; therefore, the statements made in this letter are strictly personal and unofficial and not binding on any one.
The Constitution of Georgia, 1945, Article II, Section I, Paragraph III (Ga. Code Section 2-703) provides as follows:
"To entitle a person to register and vote at any election by the people, he shall have resided in the State one year next preceding the election, and in the county in which he offers to vote six months next preceding the election."
Georgia Code Section 34-804 provides as follows: "If any person shall change his residence from one militia district to another or from one county to another after signing the oath in the permanent qualification or voters book and should desire to vote in any election in the district or county into which he removes at which he would be qualified to vote, he shall have the right, upon application to the registrars and satisfactory proof before them that he will be qualified to vote at said election, to have his name placed upon the list of registered voters for the district or county into which he has removed, for said election, with the same rights as others registered for said election." The language of the Code section above quoted must if possible be construed so as to make it harmonize with the requirements of the State Constitution. In the case of McGill v. Simmons, 172 Ga. 127 par. 2, the Supreme Court ruled that the election referred to in the Constitution was the general election. It is therefore my opinion that if a person will have been a resident of a
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county for six months on the day of the next general election, he will be qualified to vote in that election and all other elections held previously thereto.
Thus, if a person will have been a resident for only a short time on the day of the State or County primary, but will have been a resident for six months on the day of the next general election, such person will be qualified to vote in the State and County primaries.
If a qualified registered voter changes his residence from one county to another, he has the right, upon application to the Tax Collector and satisfactory proof to the registrars that he will be qualified to vote at an election in the new county, to have his name placed on the voters' list in the county to which he has removed. A transferee must necessarily have been registered in order to transfer. The six months period refers to registration.
ELECTIONS-Qualification.s of Voters (Unofficial) 1. A voter who will have resided in the county six months at time of general election is entitled, if otherwise qualified, to vote in county primary. 2. The residence of a person removing from one county to another is a question of fact, of which intention is principal determining factor.
March 10, 1948 Honorable S. R. J oily
This will acknowledge receipt of your letter of March 3, 1948, in which you request that I give you information upon the following questions:
"Is a voter qualified to vote in County Primary, if he will have been in .said County more than six months at the time of the General Election, but not six months at the time of County Primary, if he is otherwise qualified?"
"If a voter who is a resident of one county and moves into another county, and only been in the county to which he moved a few days, can he go back to county he moved from and vote in election in that county?"
Under the law the Attorney General can only. give an opinion to the Governor and to the heads of the various departments of the State Government, and then only upon matters in which the interest of the State is involved. However, I am pleased to be of such assistance I can to you in helping you solve your problem, and anything that I may say is to be considered purely as information and not binding upon anyone in any manner whatsoever.
The dead line for registration is fixed at four months before the General Election in every county except Fulton, and six months before the General Election in Fulton County. See Acts 1946, Page 42.
Section 34-804 of the 1933 Annotated Code provides that if a qualified registered voter changes his residence from one county to another, he shall have the right, upon application to registrars and satisfactory proof that he will be qualified to vote at an election in the new county, to have his name placed on the voters' list in the county into which he has removed.
If otherwise qualified, if <t person has been a resident of the State one year and the county six months, or will have been a resident of the State one year and the county six months at the date of General Election, which this year will be November 3rd, such a person can register at any time up to and through July 2nd, in counties other than Fulton, without a transfer even though he may at some time have registered in some other county of the State. If he is
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registered in one county but has moved to another and wishes to vote in the county to which he has removed, he may transfer after July 2nd, 1948, provided he is transferred as set out in Section 34-804 and the transfer is approved by the registrars of the county into which he has moved and his name is certified as a qualified voter.
ELECTIONS-Qualifications ,of Voters (Unofficial) Qualifications of voters for municipal elections are fixed by the Charter.
April 2, 1948 Honorable Perry Brannen, Chairman Board of Registrars of Chatham County
I have your letter of March 31, 1948, in which you request my opinion on the proper solution of the conflict between the provisions of the charter of Savannah Beach relative to the registration of voters within said municipality and the general State law on the same subject.
The Act of the General Assembly (Ga. Laws 1946, page 42) provides as follows:
"That all persons who, at the General Election on November 1944, in any county, city or town of the State who were not on the current qualified voters' list of said county, city or town or who have not registered since that time or who shall not hereafter register, shall, before voting at the next or any succeeding General or Special Election, first qualify by registering with the proper officials of the county, city or town of the State at least four (4) months before any such future General Election and five (5) days before any such Special Election."
On February 28, 194-6, I issued an opinion on the above Act which provided in part as follows:
"The act deals with municipal voters. The charters of the different cities deal in different ways with the voters of their city or town. The 1946 act is general and conflicts with many of the local acts. The qualification of voters for the different municipal elections is a matter for the proper officers of each town or city, and we express no opinion in regard to municipal voters...."
I am attaching a copy of this opinion for your use. The Attorney General is prohibited by law from rendering official opinions or advice to anyone except the Governor and the heads of the various State Departments, and then only upon matters in which the State is involved. Therefore, I suggest that you discuss this question with your City Attorney and other proper City officials of Savannah Beach. You can readily understand my position in not usurping the powers and duties of the County and City Attorneys in local matters.
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ELECTIONS-Qualification.s of Voters (Unofficial) 1. The petition for wet and dry election should be checked against official registration for last general election. 2. Voters qualified to vote for members of the General Assembly at time of call may vote in the election.
June 15, 1948
Honorable J. J. Daniell Ordinary, Cobb County
Your letter regarding the calling of a wet and dry election in Cobb County received. You ask three separate and distinct questions. We will attempt to assist you in answering each question as you ask it.
"(A) When proponents of movement file their petition with me, should I check it with the official registration list used in the last general election held November 5, 1946, or with the present registration lists; and will signers of 35 o/o of 1946 list warrant my calling an election under Section 4 of Act approved February 3, 1938 above mentioned or must they have 35 o/o of the present registration'/"
You would use the 1946 registered list in checking the petition filed with you for the call.
" (B) In event you hold that signers whose names were on the 1946 list only are qualified to sign the petition, then I beg to inquire if only 1946 registrants will be qualified to vote in the election to be held; or will every person now legally registered be entitled to vote in the election'/"
Code Section 58-1004, to-wit: "58-1004. Qualified electors.-At such special election, there shall be submitted to the voters of the county who are qualified to vote for members of the General Assembly the question of whether the manufacture, sale, and distribution of alcoholic beverages and liquors in the county shall be permitted or ;prohibited.", defines those voters that can participate in the election after it is called. Any voter that is registered and qualified to vote for members of the General Assembly at the time of the call of the special election would be entitled to vote in the election regardless of whether they were on the 1946 list or had registered at any time before the call of the special election, the requirement being for the voters to be eligible to vote for members of the General Assembly. "(C) In event it becomes my duty to call an election, shall I have ballots printed (a) 'For Taxing and Legalizing and Controlling Alcoholic Beverages and Liquors', and 'Against Taxing and Legalizing and Controlling Alcoholic Beverages and Liquors', or (b) 'For Nullifying Election held April 5, 1938 on Subject of Taxing, Legalizing and Controlling Alcoholic Beverages and Liquors' and 'Against Nullifying Election Held April 5, 1938 on Subject of Taxing, Legalizing and Controlling Alcoholic Beverages and Liquors'?" Either suggestion (a) or (b) in your question would be sufficient for the ticket to be used in the election. In view of the provisions of Code Section 58-1011, to-wit: "58-1010.1 Election for purpose of nullifying previous election.-In any county which has at any time held an election in accordance with the provisions of this Chapter, resulting in the majority of the votes being cast in, favor !Of taxing, legalizing and controlling alcoholic beverages and liquors, and the manu-
174
facture, distribution and sale of same in such county, the ordinary of such county shall, upon a petition signed by at least 35 o/o of the registered qualified voters of said county, proceed to call another election in the same manner as hereinbefore provided, for the purpose of nullifying the previous election; however, no such election shall be called or had within two years after the date of the declaration of the result by the ordinary of the previous election had for such purpose under this Chapter.", it would probably be better if you used suggestion (b).
ELECTIONS-Qualifications of Voters (Unofficial) Persons 18 years of age and over may vote without payment of poll taxes.
July 15, 1948 Hon. Daniel K. Grahl, Publisher The Warner Robins Press
I am pleased to acknowledge your letter of July lOth, in which you ask whether or not the municipality of Warner Robins is required to permit persons who are 18 years of age or over to vote in city elections without the payment of poll taxes.
Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters affecting the operation of the State government. You will therefore understand that this letter is not an official opinion, but is simply being sent as a matter of information.
Section 2-702 of the State Constitution provides as follows: "Every citizen of this State who is a citizen of the United States, eighteen years old or upwards, not laboring under any of the disabilities named in this Article, and possessing the qualifications provided by it, shall be an elector and entitled to register and vote at any election by the people: Provided, that no soldier, sailor or marine. in the military or naval services of the United States shall acquire the rights of an elector by reason of being stationed on duty in this State." You will note that the above provision of the Constitution provides that the elector shall be "entitled to register and vote at any election by the people." Section 2-8004 of the State Constitution provides as follows: "Local and private acts passed for the benefit of counties, cities, towns. corporations and private persons, not inconsistent with the Supreme Law, nor with this Constitution and which have not expired nor been repealed, shall have the force of Statute Law, subject to judicial decision as to their validity when passed, and to any limitations imposed by their own terms." The above provision of the Constitution nullifies any provision .of a local or private act which is inconsistent with the Constitution itself. As Section 2-702 of the Constitution shows, the poll tax has ~een repealed and the voting age lowered to 18 years by the Constitution.
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ELECTIONS-Qualifications of Voters (Unofficial) 1. A person unable to read English may vote if he is of good character and understands responsibilities of citizenship. 2. A voter incapacitated by physical handicap or inability to read English may, upon taking required oath, receive assistance within the polling place.
September 2, 1948 Hon. G. L. Brown
I am pleased to acknowledge receipt of your letter of August 28th, in which you ask whether or not an illiterate person can vote in this State.
The qualifications of electors are set forth in Paragraph 4 of Section I of Article 2 of the State Constitution. The two provisions which directly apply to your question, are as follows:
"Section 2-704. (1) All persons who are of good character and understand the duties and obligations of citizenship under a republican form of government; or, (2) All persons who can correctly read in the English language any paragraph of the Constitution of the United States or of this State and correctly write the same in the English language when read to them by any one of the registrars, and all persons who solely because of physical disability are unable to comply with the above requirements but who can understand and give a reasonable interpretation of any paragraph of the Constitution of the United States or of this State that may be read to them by any one of the registrars."
You also ask whether it is necessary to have one or two of the poll holders accompany a voter who is unable to mark his ballot, to the booth in order that he may vote. I think the answer to this question is supplied by the latter part of Section 34-1905, (Acts of 1943, p. 290) which reads in part as follows:
"Any voter applying to vote who shall state under oath in writing to any of the managers, which said oath may be administered by any of the managers, that by reason of his inability to read the English language, or by reason of blindness or the loss of the use of his hands or other physical infirmity, he is unable to prepare his ballot, may have the assistance of any two managers, jointly or separately, in the preparation of his ballot, or may select any freeholder of his choice to aid him in the preparation of his ballot."
Under the Constitution and laws of this State, the Attorney General is prohibited from giving official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. I am glad however, to refer you to the above provisions of law, as a matter of information, and trust that they fully answer your questions. I would suggest that if the above statutes are not entirely clear, that you consult your county attorney, as he is in a position to officially advise you in the premises.
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ELECTION-Registration of Voters (Unofficial) Duties of registrars are to receive from tax collector lists of eligible and ineligible voters; where the names of persons appearing on eligible list are questioned by registrars, to notify them and give them opportunity to appear; and finally, to prepare list known as "registered voters".
January 6, 1948
Hon. B. 0. Brinson, Chairman Board of Registrars Muscogee County
I am pleased to acknowledge receipt of your letter of January 1st, in which you state the following:
"As the registration of voters and the purging of voting lists is important this year on account of elections coming up, I would like to be advised as to the duties of the Board of Registrars of Muscogee County. Heretofore, it has been the custom in Muscogee County for the Tax Commissioner to handle all registrations, but he has stated to me that it being such a big task this year, he did not see how his office could handle it.
"I will thank you to send me full instructions in the matter." Most of the duties relating to the board of registrars will be found in Chapters 34-2, 34-4 and 34-6 of the Amended Code of Georgia. I regret that I do not have all of these laws available in pamphlet form in order that a copy could be sent to you, but I believe that the following sections quoted herein will furnish the information which you desire. Section 34-201 provides: "Each year the tax collectors of the several counties shall make up the registration lists for the year as now provided by law by putting on such registration lists the names of such electors as appear on the permanent qualification or voters' book, and who have duly paid all poll taxes due and required Qf them at least six months prior to the election for which the registration list is made up." (Poll tax now repealed). Section 34-202 provides: "Within 10 days after closing the votErs' books, as provided in section 34-106, the tax collector shall file with the county registrars an accurate and complete copy of the registration list made up as provided in the preceding section, arranged in alphabetical order, and by militia districts and city wards, and also showing the dates in that year when persons will arrive at full age or will have resided in the State and county the requisite time, as sworn to in the voters' books. The list shall also show the race of each person-that is to say, whether white or colored-his age, occupation, and residence. Section 34-203 of the Supplement to the Code provides: (Ga. L. 1945, pp. 129-131) "The tax collector, the ordinary and the clerk of the superior court of each county shall before the 20th day of April of each year, prepare and file with the county registrars a complete list, alphabetically arranged, of all persons living in the county on April 10 of that year, who appear to be disqualified from voting by reason of idiocy, insanity, or conviction of crime whose penalty is disfranchisem*nt, unless such convict has been pardoned and the right of suffrage restored to him or by reason of death as evidence by the records of the local registrar of vital statistics or otherwise. The tax collector or tax
177
commissioner, as the case may be, shall furnish the names of those removed from the list of registered voters for failure to request continuation of his registration after written notice stating that said registration will be cancelled for failure to vote within the past two years. Said list shall also show the race of such person-that is to say whether white or colored."
Section 34-204 of the Supplement to the Code provides: (Ga. L. 1945, pp. 129-131)
"In preparing said list of disqualified persons, the said tax collector, ordinary, and clerk of the superior court shall act upon the best evidence obtainable by them and they shall especially examine and consider the records of the criminal courts of the county, tax digE:sts, wherever they may be. In the event that there is a difference of opinion among said three officers as to whether any name or names shall be placed on said list of disqualified persons, the concurrent votes of any two shall control in the matter. The tax collector or tax commissioner, as the case may be, shall also enter on the list of disqualified voters the names of those who have failed to vote in at least one election within the past two years and who have failed to request continuation of their registration after written notice that their registration will be discontinued for failure to vote in at least one election within the past two years."
Section 34-401 of the Code provides: "The registrars shall, in each year in which a general election is to be held, meet on the 20th day of April, or the Monday thereafter if the 20th of April falls on Sunday, and begin the work of perfecting a true and correct list of the qualified voters of their county. The list furnished by the tax collector shall be prima facie evidence of the right of the person whose name appears thereon to vote; in any case where the registrars question the right of a party whose name is furnished by the tax collector, to vote, such person shall be notified of that fact and be given an opportunity to appear before the registrars as provided in section 34-604. The registrars shall examine the list furnished by the tax collector and compare the same with the list of disqualified persons, prepared and filed by the tax collector, the ordinary, and the clerk of the superior court, and shall proceed to make up a list to be known as "registered voters," in alphabetical order of names and by militia districts and city wards, distinguishing in said lists between the white and colored voters, said list to show the age, occupation, and residence of said voters." I trust that the above provisions of law may be of some benefit to you in this matter. If you have any specific inquiry relating to your duties, write me and I will be glad to give more specific information on the same. While under the law the Attorney General cannot render official opinions .to county officials, nevertheless I am always glad to render any information or assistance to our local officials.
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ELECTIONS-Registration of Voters (Unofficial) Tax collector or any clerk authorized to receipt for taxes in course of employment may take charge of voters' books.
January 26, 1948 Mr. Robert S. Reese Spiritual Mobilization
Your letter of January 19, 1948, addressed to the Honorable Ben W. Fortson, Jr., Secretary of State, in which you ask for information regarding the appointment of deputy registrars, has been referred to the Law Department for reply.
The Attorney General is not authorized under the law to give official information or opinions except when directed by the Governor or the heads of the several State Departments. Therefore, the information given herein is strictly personal and unofficial.
Section 34-104 of the Annotated Code of Georgia of 1933 reads as follows: "The tax collector, or any clerk employed by him and authorized by him to receipt for taxes in the usual course of his employment, is hereby empowered to take charge of the voters' books and to administer the oath required to qualify an elector." Section 34-105 reads as follows: "The tax collector may open as many of said voters' books as he may deem necessary, and he shall always keep one of such voters' books open for signatures at his office at the county site, at any and all times when his office is open for the paym~nt of taxes or other business; and he shall also carry with him and keep open for signatures one such voters' book in each and all of his visits to the several militia districts of his county for the purpose of collecting taxes."
ELECTIONS-Registration of Voters (Unofficial) No time is specified for compl~:;ting lists of voters in primary and party authorities may formulate any rules with respect thereto.
January 30, 1948 Hon. Holland T. Hicks Attorney at Law
This will acknowledge receipt of your letter of January 19th, in which you ask whether or not a legal primary can be held on March 3, 1948, since the registrars are not required by law to meet until the 20th day of April to purge the voters lists.
You refer to Sections 34-401 to 404 as indicating that the holding of a primary on the above date might be illegal.
I am of the personal opinion that the above sections refer to the holding of a general election, and would therefore not be a bar to the holding of a primary prior to April 20th. With respect to primary elections, there is no time specified in the statute governing the date nor time when the registrars shall complete their work in compiling a list of qualified voters to be used in such elections.
I am of the further personal opinion that since the election we are dealing
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with is a primary election, the party authorities holding the same may in cooperation with the registrars and the Tax Collector formulate any rules and regulations in connection therewith in reference to the time of closing the books and the preparation of the lists of qualified voters to be used in the election as they may deem reasonable. See Code Section 34-3209.
Under the Constitution and laws of this State, the Attorney General is prohibited from giving official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. I am glad however, to refer you to the provisions of law applicable to your question as a matter of information.
ELECTIONS-Registration of Voters (Unofficial) Registration books for general elections in counties of less than 20,000 population must be kept open until four months before election; in counties over 20,000, until six months before the election.
April 20, 1948 Mr. William H. Warwick Secretary and Treasurer Lowndes County Democratic Executive Committee
I have your letter of April 19, in which you request my opmwn as to the date the registration books close for the coming general election in September.
As you know, I am prohibited by law from rendering official opinions to anyone except the Governor and heads of the various State departments, therefore, the following remarks are entirely personal, unofficial, and not binding on anyone.
Code Section 34-106 does provide that the voters books shall close six months before the date of a general election. However, in 1946 the General Assembly enacted a law which provides that registration shall be accomplished "at least four months before any ... general election" (Georgia Laws 1946, p. 42, Code of Ga. Annotated, Sec. 34-118).
I have previously ruled that the Act of 1946 repealed Code Section 34-106 by implication, and I am still of that opinion. This being the case, the registration books must be kept open until four months before the date of the election. In my opinion, the time of closing the registration books is therefore midnight of July 1, 1948.
I wish to point out that the Act of 1946 does not apply to counties of 200,000 or more population, and therefore, Fulton County is not covered by its provrswns. Therefore, in Fulton County the books would close on May 2; however, May 2 is a Sunday, and therefore the books are to be closed in Fulton County on May 1.
I am at present preparing a digest of the election laws of Georgia and as soon as they are completed I will be pleased to send you a copy.
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ELECTIONS-Registration of Voters (Unofficial) Registration in counties of less than 20,000 population must be completed four months before the general election, and therefore for election on November 2 must be closed on July 1.
April 21, 1948 Honorable Arthur S. Oldham
On March 22 last you wrote me requesting my opmwn as to the proper date for closing the voters books for registration for the general election next November 2. In my reply I stated that the last day on which registration could be accomplished for the general election would be July 2.
After long consultation and study with my staff I have revised my previous ruling and I am now of the opinion that registration must be completed by midnight July 1 next. Section 34-118 of the Georgia Code Annotated states that registration must be completed "at least four months before any ... general election." July 2 will be exactly four months prior to the general election date but the registration must be completed before the four months period required by the statute begins. Therefore, midnight July 1 will be the latest time that registration may be accomplished to enable a voter to vote in the general election.
ELECTIONS-Registration of Voters (Unofficial) 1. Before striking name of non-resident voter on tax roll, Registrars must give him opportunity to appear. 2. Whether a person residing outside the county for a year or more is qualified to vote therein is within the discretion of the Board of Registrars. 3. Right to voting residence in county other than that of actual residence must be determined upon the facts of each case.
July 14, 1948 Honorable Gerald H. Leonard Tax Commissioner, Murray County
I have your letter of July 8', in which you request my opinion on behalf of the Registrars of Murray County on the following questions:
1. May the Registrars strike the name of a voter who has moved out of the county, without first giving such a person notice to appear'!
2. Is a person who has resided outside the county for a year or more qualified to have his name on the voters' list of the county?
3. Can a person hold a voting residence in one county< but have his actual residence in another county?
As you know, I am prohibited by law from rendering official opinions to anyone except the Governor and heads of the various State departments, therefore, the following remarks are entirely personal, unofficial and not binding on anyone.
In answer to question 1, I call your attention to Georgia Code Annotated, Section 34-401, which I believe to be self-explanatory, and which reads in part as follows:
"The registrars shall, in each year in which a general election is to be held, meet on the 20th of April, or the Monday thereafter if the 20th of April falls
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on Sunday, and begin the work of perfecting a true and correct list of the qualified voters of their county. The list furnished by the tax collector shall be primu facie evidence of the right of the person whose name appears thereon to vote; in any case where the registrars question the right of a party whose name is furnished by the tax collector, to vote, suc.h person shall be notified of that; fact and be given an opportunity to appear before the registrars as pro'Vided in section 34-604. . . . . " (Emphasis supplied).
In answer to question 2, I call your attention to Georgia Code Annotated, Section 34-103, which requires that an elector to qualify must make an oath which recites, in part, that the elector has resided in the State for one year "and in this county for six months immediately preceding the date of this oath'' etc. Once having made such an oath and qualified and signed the permanent voters' book, such an elector is not thereafter required to register "except as may be required by the Board of Registrars" (Ga. Code Ann. Sec. 34-115).
The last mentioned Section clearly gives the Registrars the authority to require a voter to re-qualify should they have reasonable cause so to do.
In answer to question 3, I again call your attention to the voter's oath as set out in Georgia Code Annotated, Section 34-103. Of course the residence of an individual is a question which must be determined by examination of that particular individual's status and situation.
ELECTIONS-Registration of Voters (Unofficial) A person removing his residence to another county may have his registra tion transferred.
July 16, 1948 Hon. Bryan Lumpkin, Secretary Clarke County Democratic Executive Committee
I am pleased to acknowledge your letter of July 13th, in reference to the right of properly qualified voters of one county to transfer to another county where they have moved their residence. You state that in the past it has been the custom for the registrars and tax collector of Clarke County to allow transferrees to vote in that county, even when the transfers were made immediately preceding the date of the election. You further state that such a practice would tend to permit a person to vote in more than one county.
Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. I am glad however, to reply to your letter as a matter of information and cite the following provisions of law which supply the answer to your inquiry.
Section 34-804 of the Code provides: "If any person shall change his residence from one militia district to another or from one county to another after signing the oath in the permanent qualification or voters' book and should desire to vote in any election in the district or county into which he removes at which he would be qualified to vote, he shall have the right, upon application to the registrars and satisfactory proof before them that he will be qualified to vote at said election, to have his name placed upon the list of registered voters for the district or county
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into which he has removed, for said election, with the same rights as others registered for said election."
Should a person use the above statute as a means of voting twice, then he would be subject to the penal provisions of Section 34-9904, which reads as follows:
"Any person who shall vote more than once at any election which may be held in any county, or vote out of the county in which he may usually reside, for members of the legislature, or for county officers, unless authorized by law, shall be punished by imprisonment and labor in the penitentiary for not less than one year nor more than two years."
ELECTIONS-Registration of Voters (Unofficial) Persons absent on military service are not exempted from the Code provision that voters register "at least four months before" the general election.
July 26, 1948
Honorable Roger Bond Albany Herald
I have your letter of July 24, in which you request my opinion on the following question:
May persons who were unable to register for the 1948 Primary because of absence on military service be permitted to register after the regular registration date of July 1, 1948?
As you know, I am prohibited by law from rendering official opinions to anyone except the Governor and heads of the various State departments, therefore, thE> following remarks are entirely personal, unofficial, and not binding on anyone.
The situation that you have pointed out is indeed one of extreme hardship, but I have regretfully come to the conclusion that only the General Assembly may supply the remedy.
Georgia Code Annotated, Section 34-118 requires that voters register "at least four months before" the general election, and I know of no method of varying the explicit terms of the statute.
I do wish to point out that under the provisions of Georgia Code Annotated, Section 34-115, an elector who has once qualified and signed the permanent voters' book is not required to register again thereafter if such person retains his qualifications by voting in at least one election within a two years period, unless the Board of Registrars specifically requires such elector to re-register. Under this Section a trainee who has previously registered very probably would still be on the voters' book. I realize, of course, that the age group of the returning trainees is such as to make this circ*mstance unlikely.
Electors who are registered but not actually able to go to the polls may cast their votes by mail under the provisions of Georgia Code Annotated, Section 34-301, but, again, this provision will probably not be very helpful to the: trainees.
It is a matter of grave concern to me that returning trainees should be, deprived of the opportunity to vote because of their absence at registration time, but I have been unable to find any provision of the law which will permit later registration.
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ELECTIONS-Registration of Voters (Unofficial) Cost of preparing lists of voters paid from county treasury.
September 21, 1948 Hon. W. A. Redmond, Registrar
This will acknowledge receipt of your letter of September 11th, in which you state that you and two other members of the Board of Registrars, viz., Hon. John J. puss*r and Hon. J. M. Stokes, prepared lists of registered voters for the primary election and also attended the election on the day it was held in order to correct mistakes, etc., in the lists. You desire to know whether the county or the Democratic Committee should pay for this service.
Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the operation of the State government. I am glad however, to reply to your letter as a matter of information, and cite you the following provisions of law in answer to your inquiry.
Section 34-1001 of the Code provides in part, as follows: " ... For each day the county registrars may be actually engaged in the discharge of their duties, they shall receive the sum of $2.00. All of said sum shall be paid out of the county treasury as other county bills are paid; provided, however, that the county commissioners of any county shall have the power to fix a different compensation for the above named officers in their respective counties; and in counties having no county commissioners, such power to change the compensation herein provided shall belong to that officer or officers exercising the power usually vested in county commissioners. The cost of the voters' books and of printing the lists provided for shall be paid out of the county treasury as other county bills are paid." In Howell vs. Banks,ton, et al., 181 Ga. p. 59, our Supreme Court of Georgia held as follows: "1. Under constitutional and statutory provisions, county commissioners are authorized to pay, from general county funds, the costs of county registrars in preparing lists of voters." If the above provisions of law are not entirely clear to you, it would be my suggestion that you confer with your county attorney, since he is, in a position to make an official ruling in the premises.
ELECTIONS-Registration of Voters (Unofficial) A voter transferring from one county to another after county primary may vote in the general election in the latter county if residence requirements are met.
October 1, 1948 Hon. J. E. Hawes, Tax Collector McDuffie County
I am pleased to acknowledge your letter of Septemb:r 27th, in which you request information relating to voters transferring from one county to another prior to the general election, such transfers taking place after the county primary was held.
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Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. I am glad however, to refer yo~ to the following \Provisions of law which answer your inquiry. Section 34-804 of the Code provide,.; as follows:
"If any person shall change his residence from one militia district to another or from one county to another after signing the, oath in the piEirm)lnent qualification or voters' book and should desire to vote in any election in the district or county into which he removes at which he could be qualified to vote, he shall have the right, upon application to the registrars and satisfactory proof before them that he will be qualified to vote at said election, to have his name placed upon the list of registered voters for the district or county into which he has removed, for said election, with the same rights as others registered for said election."
However, the above provision of the Code must be construed in connection with Article 2, Section I, Paragraph 3 of the State Constitution which provides as follows:
"To entitle a person to register and vote at any election, by the people, he shall have resided in the State one year next preceding the election and in the county in which he offers to vote six months next preceding the election."
The above provision of the Constitution requires that a person desiring to vote, shall be a resident of the county at least six months previous to the date of the general election.
As stated above, this is an unofficial opinion and is not binding upon anyone, but is simply being sent as a matter of information. I trust that the above provisions of law will give you the desired information.
ELECTIONS-Soldiers Vote Law The Soldiers Vote Law expired by its terms in January, 1947.
March 2, 1948 Honorable James S. Peters, Chairman State Democratic Executive Committee
This will acknowledge your letter of February 24, requesting my opinion as to whether or not the Soldiers Vote Law is still in effect in this State.
The Soldiers Vote Law (Ga. Laws 1944, pp. 2, 8) which is codified as
Chapter 34-36 in the Supplement to the Annotated Code, provides that its terms and provisions "shall expire and become extinguished upon the convening of the General Assembly in regular session next after the termination of the present war". The answer to your question necessarily depends upon the meaning of the language "termination of the present war."
There are three ways generally recognized in international law whereby war may be terminated; (1) by actual cessation of hostilities; (2) by the conquest and subjugation of one of the contending parties by the other so that the former is reduced to impotence and submission; (3) by a mutual arrangement embodied in a treaty of peace. See Phillips on Termination of War and Treaties of Peace, p. 3; Oppenheimer, International Law, p. 465; 67 C. J. War, p. 429.
The latter has been referred to as the legal view of the termination of
185
war. But its application has been primarily for the purpose of remedying, under the war powers of Congress, economic or social conditions which arose during the conflict and continued after the cessation of hostilities. Thus, in Hamilton v. Kentucky Distilleries Co. 251 U. S., 146, the court said that the war power includes the power "to remedy the evils which have arisen from its rise and progress" and continues for the duration of the emE:rgency. And in Tighe E. Woods v. The Cloyd W . .Miller Co., decided Feb. 16, 1948, the Supreme Court stated: "Here it is plain from the legislative history that Congress was invoking its war power to cope with a current condition of which the war was a direct and immediate cause." However, the court further said: "We recognize the force of the argument that the effects of war under modern conditions may be felt in the economy for years and years, and that if the war power can be used in days of peace to treat all the wounds which war inflicts on our Society, it may not only swallow up all other powers of Congress but largely obliterate the 9th and lOth Amendments as well. There are no such implications in today's decision. We deal here with the consequences of a housing deficit greatly intensified during the period of hostilities by the war effort."
As was pointed out in my opinion to Hon. Ellis Arnall, then Governor, on April 20, 1946, holding that the Soldiers Voting Law was still in effect at that time, "The deciding factor in keeping in effect legislation arising from the necessity of war is not whether actual armed hostilities have ceased, but is whether the necessity which gave rise to; the legislation contin,ues to exist."
The Georgia appellate courts have never expressed an opinion as to the meaning of the phrase "termination of the present war", or similar phrases which are frequently used in State statutes. However, it certainly is the view commonly accepted by the public that the war ends with the cessation of hostilities and many courts have adopted this view in dealing with legislative enactments. Thus, in Geo. B. Newton Coal Co. v. Davis (Pia.), 126 Atl. 192, affirmed 267 U. S. 292, it was held that the provisions of the Lever Act, granting certain powers to the President of the United States "during the war or such part of the said time as in his judgment may be necessary", has relation solely to a "state of actual war-a condition then existing". In Zinno v. Marsh, 36 N. Y. Supp. (2), 866, it was held: "The words 'during the world war', as commonly used, describe the period commencing with the entry of the United States into World War I and ending with the Armistice on Nov. 11, 1918, and the Legislature must be assumed to have used them in that sense in enacting the Civil Service Law in granting soldiers preference in employment." To the same effect, see Leferve v. Healey (N.H.), 26 Atl. (2) 681; State Ex ReJ Peter v. Listman, tt al (Wash.), 288 Pac. 931; Scott v. Commissioner o.f Civil Service (Mass.), 172, N. E. 218; United States v. Hicks, 256' Fed. 707.
The rationale of these opinions and the reason for the apparent conflict is that in each instance the court was seeking to arrive at the intent of the legislative body in enacting the specific statute which was then under consideration.
The controlling rule in interpreting a statute of doubtful meaning and application is that the legislative intent should be ascertained and given effect. (Thompson v. Eastern Air Lines, 200 Ga. 216; Thacker v. Morris, 196 Ga. 167; Code Section 102-102 (9) .)
The legislative intent will prevail over the literal import of the words. (Washington v. Atl. Coastline Railroad Co., 136 Ga. 638.) The statute must
186
be examined as a whole and its different provisions reconciled if possible. (Cairo Ban,king Co. v. Ponder, 131 Ga. 708.) The general scheme and purpose of the Legislature is a proper .?riterion for the construction thereof. (Singleton v. Close, 130 Ga. 716.)
In seeking the intent of the General Assembly in enacting the Soldiers Vote Law, the fact that, in the minds of the general public, the war terminated with the cessation of hostilities, is in itself persuasive that this also was the meaning of the General Assembly by the use of the phrase "termination of the present war" in the statute. The general rule is that the ordinary signification shall be applied to all words in the construction of statutory enactments.
At the time of the enactment of the Soldiers Vote Law, we had been engaged in a great conflict for more than two years. Large numbers of our citizens were serving in the armed forces in distant parts of the world. Communications were slow. The result was that these citizens were actually disfranchised as there was not sufficient time for them to vote by absentee ballot under the statutes then in existence. This was the evil which the General Assembly sought to remedy. It would be illogical to conclude that the General Assembly intended the remedy to continue after the evil had expired.
At the time of the enactment of the Soldiers Vote Law, the General Assembly knew that the first World War did not technically end until July 2, 1921, almost three years after the signing of the Armistice. (38 USCA, Section 424, Paragraphs 14 and 15.) There was an enemy government in existence with whom a treaty of peace could be signed. It was apparent at the time of the passage of the Soldiers Vote Law that hostilities might continue until the complete overthrow of the enemy government (as happened in the case of Germany), leaving no government with whom a formal treaty of peace could b3 signed and thus in all probability delaying the technical ending of the war foe many years. It also was apparent at that time that the evil which the Soldiers Vote Law sought to remedy might cease to exist long before the technical ending of the war. The General Assembly must have recognized that inductions under the Selective Service Act would not continue until the formal ratification of a treaty of peace and presumably would cease shortly after the cessation of hostilities. It further must have presumed that most of the men inducted under the Selective Service Act would not be held in service for a period of years, until the final ratification of a peace treaty.
In the light of the above it is significant that the provisions of the Soldiers Vote Law were attuned to the Selective Service Act. Thus it was provided that the State Selective Service, among others, was charged "with the duty of cooperating with the election and party officials in carrying out the purpose of the act". (Code Section 34-3602, Cum. Pocket Part) ; and the military registration card which was provided by the act refers to the "induction" of the citizens into the military service of the United States. (Code Section 34-3605, Cum. Pocket Part). It is improbable therefore that the General Assembly intended the provisions of the Soldiers Vote Law to continue in effect after inductions under the Selective Service Act had ceased and the inductees had been released from the military service. The act at that time would have fully accomplished its purpose, although that might occur many months prior to the technical ending of the war.
It is also significant that the General Assembly did not cause the act to
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expire upon "the termination of the war", which would have been the logical time of termination, if the General Assembly had in mind the ratification of a peace treaty or the announcement by the political branch of the government that this had occurred, but continued it in force until "the convening of the General Assembly in regular session next after the termination uf the present war." The only logical purpose for thus fixing the expiration date was to give the General Assembly an opportunity to re-examine conditions after hostilities had ceased for the purpose of determining whether the act should be continued in force.
Based upon the foregoing, it is my opinion that the General Assembly did not use the language "termination of the present war" with the technical legal meaning of an official proclamation of peace, but rather with the popular and commonly accepted meaning of a cessation of hostilities.
At the time of the convening of the 1947 Legislature, not only had Germany been completely subjugated and Japan surrendered unconditionally, but on Dec. 31, 1946, the President had formally proclaimed the cessation of hostilities. Regular mail service with those distant lands where our citizens were still serving in the military forces had been restored. It was known that the Selective Service Act would expire by its own term.s on March 31, 1947, and that there would be no State Selective Service to cooperate with election and party officials. A draft holiday had already been declared at that time and inductions under the Selective Service Act had ceased. Provision was being made for the discharge of inductees within a short time. In this connection, I am informed that all men and women inducted into the military service under the Selective Service Act or those enlisting for the duration of the war have been discharged from the various services, except those in service hospitals undergoing treatment or those in disciplinary barracks under conviction for military offenses. Those now serving in the armed forces are the ones who have voluntarily enlisted for a specific term.
The General Assembly, at its 1947 regular session, being familiar with these developments, and knowing that the next general election would not be held until 1948, did not see fit to take any affirmative action to continue in effect the provisions of The Soldiers Vote Law. It is my own opinion, therefore, that the Soldiers Vote Law, by its own terms, expired and became extinguished upon the convening of the 1947 session of the General Assembly.
In arriving at this conclusion, I am implemented by an expressed opinion of the Democratic Party of Georgia, which under the present circ*mstances is the only political party affected thereby. In a resolution of the Convention of the Democratic Party in Macon, Ga., in October 1946, the party called for a Primary to be held on the second Wednesday in August 1948, in each of the counties of the State for the nomination of candidates of the Democratic Party for offices required to be filled in the general election of 1948. This date could not have been fixed as the date for the Democratic Primary if the party had believed that the Soldiers Vote Law was still in effect.
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ELECTIONS-Soldiers Vote Law The Soldiers Vote Law expired by its terms in January, 1947.
March 30, 1948 Honorable Ben W. Fortson, Jr. Secretary of State
This will acknowledge receipt of your letter of March 25, requesting my opinion as to whether or not the Soldiers Vote Law is still in effect in this State.
The Soldiers Vote Law (Ga. Laws 1944, pp. 2, 8) which is codified as Chapter 34-36 in the Supplement to the Annotated Code, provides that its terms and provisions "shall expire and become extinguished upon the convening of the General Assembly in regular session next after the termination of the present war". The answer to your question necessarily depends upon the meaning of the language "termination of the present war."
There are three ways generally recognized in international law whereby war may be terminated: (1) by actual cessation of hostilities; (2) by the conquest and subjugation of one of the contending parties by the other so that the former is reduced to impotence and submission; (3) by a mutual arrangement embodied in a treaty of peace. See Phillips on Termination of War and Treaties of Peace, p. 3; Oppenheimer, International Law, p. 465; 67 C. J. War, p. 429.
The latter has been referred to as the legal view of the termination of war. But its application has been primarily for the purpose of remedying, under the war powers of Congress, economic or social conditions which arose during the conflict and continued after the cessation of hostilities. Thus, in Hamil'ton v. Kentucky Distilleries Co. 251 U. S., 146, the court said that the war power includes the power "to remedy the evils which have arisen from its rise and progress" and continues for the duration of the emergency. And in Tighe E. Woods v. The Cloyd W. Miller Co., decided Feb. 16, 1948, the Supreme Court stated: "Here it is plain from the legislative history that Congress was invoking its war power to cope with a current condition of which the war was a direct and immediate cause." However, the court further said: "We recognize the force of the argument that the effects of war under modern conditions may be felt in the economy for years and years, and that if the war power can be used in days of peace to treat all the wounds which war inflicts on our society, it may not only swallow up all other powers of Congress but largely obliterate the 9th and lOth Amendments as well. There are no such implications in today's decision. We deal here with the consequences of a housing deficit greatly intensified during the period of hostilities by the war effort."
As was pointed out in my opinion to Hon. Ellis Arnall, then Governor, on April 20, 1946, holding that the Soldiers Voting Law was still in effect at that time, "The deciding factor in keeping in effect legislation arising from the necessity of war is not whether actual armed hostilities have ceased, but is whether the necessity which gave rise to the legislation continues to exiat."
The Georgia appellate courts have never expressed an opinion as to the
meaning of the phrase "termination of the present war", or similar phrases which are frequently used in State statutes. However, it certainly is the view commonly accepted by the public that the war ends with the cessation of hostilities and many courts have adopted this view in dealing with legislative enactments. Thus, in Geo. B. Newton Coal Co. v. Davis (Pa.), 126 Atl. 192,
189
affirmed 267 U. S. 292, it was held that the provisiOns of the Lever Act, granting certain powers to the President of the United States "during the war or such part of the said time as in his judgment may be necessary", has relation solely to a "state of actual war-a condition then existing". In Zinno v. Marsh, 36, N. Y. Supp. (2), 866, it was held: "The words 'during the world war', as commonly used, describe the period commencing with the entry of the United States into World War I and ending with the Armistice on Nov. 11, 1918, and the Legislative must be assumed to have used them in that sense in enacting the Civil Service Law in granting soldiers preference in employment." To the same effect, see Leferve v. Healey (N. H.), 26 Atl. (2) 681; State Ex Rel' Peter v. Listman, et al (Wash), 288 Pac. 931; Scott v. Commissioner of Civil Service (Mass.), 172 N. E. 218; United' States v. Hicks, 256 Fed. 707.
The rationale of these opinions and the reason for the apparent conflict is that in each instance the court was seeking to arrive at the intent of the legislative body in enacting the specific statute which was then under consideration.
The controlling rule in interpreting a statute of doubtful meaning and application is that the legislative intent should be ascertained and given effect. (Thompson v. Eastern Air Lines, 200 Ga. 216; Thacker v. Morris, 196 Ga. 167; Code Section 102-102 (9).)
The legislative intent will prevail over the literal import of the words. (Washington v. Atl. Coastline Railroad Co., 136' Ga. 638.) The statute must be examined as a whole and its different provisions reconciled if possible. (Cairo Banking Co v. Pond.er, 131 Ga. 708.) The general scheme and purpose of the Legislature is a proper criterion for the construction thereof. (Singleton v. Close, 130 Ga. 716.)
In seeking the intent of the General Assembly in enacting the Soldiers Vote Law, the fact that, in the minds of the general public, the war terminated with the cessation of hostilities, is in itself persuasive that this also was the meaning of the General Assembly by the use of the phrase "termination of the present war" in the statute. The general rule is that the ordinary signification shall be applied to all words in the construction of statutory enactments.
At the time of the enactment of the Soldiers Vote Law, we had been engaged in a great conflict for more than two years. Large numbers of our citizens were serving in the armed forces in distant parts of the world. Communications were slow. The result was that these citizens were actually disfranchised as there was not sufficient time for them to vote by absentee ballot under the statutes then in existence. This was the evil which the General Assembly sought to remedy. It would be illogical to conclude that the General Assembly intended the remedy to continue after the evil had expired.
At the time of the enactment of the Soldiers Vote Law, the General Assembly knew that the first World War did not technically end until July 2, 1921, almost three years after the signing of the Armistice. (38 USCA, Section 424, Paragraphs 14 and 15.) There was an enemy government in existence with whom a treaty of peace could be signed. It was apparent at the time of the passage of the Soldiers Vote Law that hostilities might continue until the complete overthrow of the enemy government (as happened in the case of Germany), leaving no government with whom a formal treaty of peace could be signed and thus in all probability delaying the technical ending of the war for many years. It also was apparent at that time that the evil which the Soldiers Vote Law sought to remedy might cease to exist long before the technical ending of the
190
war. The General Assembly must have recognized that inductions under the Selective Service Act would not continue until the formal ratification of a treaty of peace and presumably would cease shortly after the cessation of hostilities. It further must have presumed that most of the men inducted under the Selective Service Act would not be held in service for a period of years, until the final ratification of a peace treaty.
In the light of the above it is significant that the provisions of the Soldiers Vote Law were attuned to the Selective Service Act. Thus it was provided that the State Selective Service, among others, was charged "with the duty of cooperating with the election and party officials in carrying out the purpose of the act". (Code Section 34-3602, Cum. Pocket Part) ; and the military registration card which was provided by the act refers to the "induction" of the citizens into the military service of the United States. (Code Section 34-3605, Cum. Pocket Part). It is improbable therefore that the General Assembly intended the provisions of the Soldiers Vote Law to continue in effect after inductions under the Selective Service Act had ceased and the inductees had been released from the military service. The act at that time would have fully accomplished its purpose, although that might occur many months prior to the technical ending of the war.
It is also significant that the General Assembly did not cause the act to expire upon "the termination of the war", which would have been the logical time of termination, if the General Assembly had in mind the ratification of a peace treaty or the announcement by the political branch of the government that this had occurred, but continued it in force until "the convening of the General Assembly in regular session next after the termination of the present war." The only logical purpose for thus fixing the expiration date was to give the General Assembly an opportunity to re-examine conditions after hostilities had ceased for the purpose of determining whether the act should be continued in force.
Based upon the foregoing, it is my opinion that the General Assembly did not use the language "termination of the present war" with the technical legal meaning of an official proclamation of peace, but rather with the popular and commonly accepted meaning of a cessation of hostilities.
At the time of the convening of the 1947 Legislature, not only had Germany been completely subjugated and Japan surrendered unconditionally, but on Dec. 31, 1946, the President had formally proclaimed the cessation of hostilities. Regular mail service with those distant lands where our citizens were still serving in the military forces had been restored. It was known that the Selective Service Act would expire by its own terms on March 31, 1947, and that there, would be no State Selective Service to cooperate with election and party officials. A draft holiday had already been declared at that time and inductions under the Selective Service Act had ceased. Provision was being made for the discharge of inductees within a short time. In this connection, I am informed that all men and women inducted into the military service under the Selective Service Act or those enlisting for the duration of the war have been discharged from the various services, except those in service hospitals undergoing treatment or those in disciplinary barracks under conviction for military offenses. Those now serving in the armed forces are the ones who have voluntarily enlisted'for a specific term.
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The General Assembly, at its 1947 regular session, being familiar with these developments, and knowing that the next general election would not be held until 1948, did not see fit to take any affirmative action to continue in effect the provisions of The Soldiers Vote Law. It is my own opinion, therefore, that the Soldiers Vote Law, by its own terms, expired and became extinguished upon the convening of the 1947 session of the General Assembly.
This conclusion is supported by an expressed opinion of the Democratic Party of Georgia, which under the present circ*mstances is the only political party affected thereby. In a resolution of the Convention of the Democratic Party in Macon, Ga., in October 1946, the party called for a Primary to be held on the second Wednesday in August 1948', in each of the counties of the State for the nomination of candidates of the Democratic Party for offices required to be filled in the general election of 1948. This date could not have been fixed as the date for the Democratic Primary if the party had believed that the Soldiers Vote Law was still in effect.
ELECTIONS, W:here, When and How Held (Unofficial) Party authorities fix time for holding county primary.
January 6, 1948
Hon. Holland A. Berry, Chairman Hanco*ck County Democratic Executive Committee
I am pleased to acknowledge receipt of your letter in reference to the Hanco*ck County Democratic Executive Committee fixing a tim~ for holding a county primary for the nomination of county officers.
Your letter reached my office just before the holidays, and apparently had been misplaced for several days. This explains why I have not answered your inquiry earlier.
Section 34-3209 of the Code provides as follows: "The party authorities shall, in all matters not provided for in this chapter, formulate rules and regulations for holding said primary election and for making returns thereof to the proper party authorities." Section 34-409 of the Supplement to the Code, (Acts of 1943, page 353) provides as follows: "In any primary election no one shall be entitled to vote therein unless his or her name shall appear on the list certified to by the board of registrars at least 10 days before the date fixed for the holding of said primary; or upon presentation by said voter of a certificate signed by a majority of the county registrars stating that the voter's name was omitted from the certified list of voters by inadvertence or mistake, and that said voter is in fact qualified and entitled to vote in said primary election." In view of the above provisions of law, it seems that a primary election is subject to the rules and regulations of the proper party authorities. The party authorities holding the primary may in cooperation with the registrars and the tax collector, formulate any rules and regulations with reference to the time of the closing of the books and the preparation of the lists of qualified voters to be used in such election as they may deem to be reasonable and proper. Of course you understand that under the law the Attorney General is prohibited from rendering official opinions to any one other than the Governor
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and heads of the various departments of State upon matters pertaining to the interest of the State. This letter is simply an expression of my personal views on the subject, and is given solely for the purpose of providing information on the subject.
ELECTIONS, Where, When and How Held (Unofficial) Choice of majority or plurality system for county primary shall be indicated by party authorities.
January 30, 1948 Hon. Roy P. Otwell Secretary and Treasurer Forsyth County Democratic Committee
I am pleased to acknowledge receipt of your letter of January 23rd, in which you state that your county primary for the nomination of county officers has been set for March 4th, but the Committee overlooked discussing the rules and regulations as to whether the majority or plurality system of counting votes would apply.
While under the law the Attorney General is prohibited from rendering an official opinion on the question propounded, I am nevertheless glad to give you my personal views on the same with the understanding that anything said in this letter is to be treated purely as my personal opinion on the subject.
Section 34-3209 of the Code provides: "The party authorities shall, in all matters not provided for in this Chapter, formulate rules and regulations for holding said primary election and for making returns thereof to the proper party authorities." Since the election referred to relates only to county officers, it would seem that the Democratic Party authorities could formulate a rule or regulation adopting either the plurality or the majority system as they should see fit. It seems that this is a matter which addresses itself to the County Democratic authorities. Likewise, the question of holding a second primary should it be decided that all county nominees must have a majority of the votes cast, would be determined by the rules and regulations of the party. You will note however, that in reference to candidates for State offices, the rule is different since the law itself provides for these matters.
ELECTIONS, Where, When and How Held (Unofficial) Notice of intention to vote by absentee ballot shall be given not less than 10 nor more than 60 days before the election.
January 30, 1948 Hon. John D. Collins, Tax Collector Cobb County
This will acknowledge receipt of your letter of January 26th, in which you ask whether there is a time limit on applications for absentee ballots.
Section 34-3301 of the Amended Code provides as follows: "Any voter, when required to be absent from the city or county, ward Ol'
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district in which he is registered, may vote by registered mail: provided, that he or some member of his immediate family, viz., husband or wife, father or mother, sister or brother, or son or daughter-shall give notice in writing of such intention to the registrars or the ordinary of his county, not less than 10 days nor more than 60 days prior to the primary or general election in which he may desire to participate.
Of course you understand that the above provision of law does not relate to persons in the military service, since such military personnel is covered under the provisions of Section 34-36 of the Amended Code.
Under the Constitution and laws of this State, the Attorney General is prohibited from giving official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. It is a pleasure however, to refer you to the provision of law applicable to your question as a matter of information.
ELECTIONS, Where, When and How Held (Unofficial) 1. Absentee voting in primaries is permitted. 2. Period of residence is six months prior to general election. 3. An absentee must apply for ballot not less than 10 nor more than 60 days prior to election.
February 9, 1948 Mrs. F. G. Fisher Absentee Voters' Bureau
This will acknowledge rEoceipt of your letter of January 30, 1948, requesting information in regard to absentee voting.
Under the law the Attorney General is not authorized to render official opinions to anyone except the Governor and the heads of the various departments of the State government, and then only upon matters involving the interests of the State. However, I am pleased to be of assistance to you in any way I can in furnishing information that will be helpful to you in solving your problems, upon the condition that anything that I may say in reply to your inquiry is to be considered as information only and not binding upon anyone in any manner whatsoever.
The first question you propound is as follows : "Is absentee voting permitted in the Primary in your State to be held on September 8th?" The State Democratic Primary has been tentatively set for July 7, 1948, however, I might call to your attention that there is pending in the Supreme Court of Georgia the case of Peters vs. Morris to determine who is the Chairman of the State Democratic Executive Committee, and the exact date of the State Primary necessarily hinges upon the decision in this case. Section 34-3301 of the Pocket Supplement of the 1933 Annotated Code of Georgia provides: "34-3301. Right to vote by mail; notice to registrars or ordinary.-Any voter, when required to be absent from the city or county, ward or district in which he is registered, may vote by registered mail: provided, that he or some member of his immediate family,-viz., husband or wife, father or mother, sister or brother, or son or daughter-shall give notice in writing of such intention to
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the registrars or the ordinary of his county, not less than 10 days nor more than 60 days prior to the primary or general election in which he may desire to participate. (Acts 1943, p. 228.)"
The second question you ask is : "Do new voters become registered by signing the Voters Book at any timfl through March 2d, (6 months preceding the Primary) or is such signing only necessary 6 months before a general election?" Paragraph 3, Section 1, Article 2, Constitution of Georgia 1945 (Acts 1945, page 15) provides: "A person applying to register to vote must have been a resident of the State of Georgia one year and of the county in which he seeks to vote six months next preceding an election in which he offers to vote." This provision of the Constitution refers to the general election, which in 1948 falls on November 2nd by statute. I am attaching hereto copies of a brief resume of some of the provisions of our election laws, which may be of some help to you. You will note in this resume an analysis of Act No. 633 approved February 1, 1946 (Ga. L. 1946, p. 42), where under certain circ*mstances the period for registering is four months. The next question you propound is: "Within what time must an absentee apply for his ballot?" This question is answered by Code Section 34-3301 above referred to. There were no general changes or amendments to the election laws effecting an absentee voter during the 1947 session of the Legislature.
February 28, 1946
Honorable J. Lon Duckworth Chairman, Democratic Executive Committee
In your letter of this date you request an opmwn regarding the construction to be given to Act No. 633, approved February 1, 1946, relating to the registration of voters.
Section 1 of the Act provides as follows: "That all persons who, at the General Election of November 1944, in any county, city or town of the State who were not on the current qualified voters' list of said county, city or town or who have not registered since that time or who shall not hereafter register, shall, before voting at the next or any succeeding General or Special Election, first qualify by registering with the proper officials of the county, city or town of the State at least four (4) months before any such future General Election and five (5) days before any such Special Election." We construe this section of the Act to provide that all persons whose names do not appear as qualified voters on the voters' lists filed for the General Election of November 1944, and all persons who have not registered since the filing of that list must register with the proper official four months before the General Election to be held in November of this year, November 5, 1944. The Act does not refer to any re-registration, nor does it refer to any person who may have heretofore been registered. The Act requires all persons whose names do not appear as qualified voters on the voters' list for the November 1944 General Election to register at some time after the filing of the 1944 voters' list, provided they register four months prior to November 5, 1946. The fact that a person may have at some time in the past been a registered voter, if his name does
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not appear on the 1944 list, would not relieve such a person of registering at some time after the filing of the 1944 list.
The Act is in direct conflict with Section 34-106 of the Code of 1933, which required tax collectors and tax commissioners to close their voters' book six months before the date of the General Election. The act makes no direct repeal of the Code Section. Repeal of a statute by implication is not favored, but may be had where the latter act is in direct conflict with the former.
The Act is also in conflict with a portion of Section 34-404 of the Code. Section 34-404 of the Code required the tax collector or tax commissioner to close the voters' book within five days after the call of a special election. The 1946 Act permits voters to register up to five days before the special election.
Attention is called to the statutes regulating the duties of registrars. Section 34-401 of the Code requires the registrars to meet on the 20th day of April or Monday thereafter, and begin the work of perfecting a true and correct list of the voters of a county. Section 34-403 of the Code requires the registrars to complete their work not later than June 1. It also makes provision for the appointment of extra boards of registrars, when necessary, to complete the work by June 1. A proviso was added to the section to the effect that if the registrars failed and refused to make and file a list within the time required by law, that the list could be filed by the 20th of August.
Section 34-406 of the Code, as amended in 1943, (Acts 1943, p. 353) requires the clerks of the superior court to file with the Secretary of State his certificate under seal showing the total number of registered voters in his county. The clerks are required to file this certificate not later than July 1 of every year wherein there is held a general State election and primaries to nominate candidates for offices to be filed at th:e General Election.
The Supreme Court in Leverett v. Leonard, 192 Ga., 359, held that the object of the several sections of the Code relating to the duties of the registrars is to insure and sustain the integrity of public elections.
I have pointed out the inconsistencies of Act No. 633 with the other statutes, since under the 1946 Act voters have the right to register for the General Election of this year at anytime up to and through July 5 of this year. I am of the opinion that the registrars should meet and perform their duties in a manner and as prescribed by statutes. Should they meet and file the list by June 1, as provided for by the statute, they would be required to make a supplemental list of all persons who registered from the date of filing of the list through July 5. If they did not file their list until after July 5, the list would include the voters registering through July 5.
The act deals with municipal voters. The charters of the different cities deal in different ways with the voters of their city or town. The 1946 Act is general and conflicts with many of the local acts. The qualification of voters for the different municipal elections is a matter for the proper officers of each town or city, and we express no opinion in regard to municipal voters. This opinion deals only with persons registering with State officials for State elections.
It is therefore my opinion, that under the 1946 Act persons may continue to register for State elections through July 5 of this year; and that all persons whose names appeared on the 1944 voters' list, all persons who may have registered at any time after the filing of the 1944 list, even though such regis-
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tration may have been made prior to the approval of the 1946 Act and since the filing of the list for 1944, and all persons who may register after the passage of the 1946 Act, if they register by July 5 of this year, if otherwise qualified under the Constitution, should be placed on the voters' list for the General Election of 1946 and said list would be used for all primaries and elections held during 1946.
The adoption of the Constitution of 1945 and certain legislation passed in 1945 and 1946 have caused a great deal of confusion in regard to the registration of voters. Some tax collectors and registrars have requested that I compile in simple form the requirements for registration as electors to participate in the elections to be held this year. I am undertaking to comply with this request.
CONSTITUTIONAL REQUIREMENTS FOR REGISTRATION AS VOTERS.
1. A person must be eighteen years old or older. See Paragraph 2, Section 1, Article 2, Constitution of 1945. Acts 1945, page 15.
2. A person applying to register to vote must have been a resident of the State of Georgia one year and of the county in which he seeks to vote six months next preceding an election in which he offers to vote. Paragraph 3, Section 1, Article 2, Constitution of 1945. Acts 1945, page 15.
3. The Constitution of 1945, Acts 1945, page 15, in Paragraph 4, Section 1, Article 2 enumerates other qualifications as follows:
"1. All persons who are of good character and understand the duties and obligations of citizenship under a republican form of government; or,
"2. All persons who can correctly read in the English language any paragraph of the Constitution of the United States or of this State and correctly write the same in the English language, when read to them by any one of the registrars, and all persons who solely because of physical disability are unable to comply with the above requirements but who can understand and give a reasonable interpretation of any paragraph of the Constitution of the United States or of this State that may be read to them by any one of the registrars."
4. Paragraph 1, Section 2, Article 2 of the Constitution of 1945 (Acts 1945, page 16) sets forth persons who are disqualified and who cannot register as voters.
(a) This includes persons convicted by courts of competent jurisdiction of treason against the State, or embezzlement of public funds, malfeasance in office, bribHy or larceny or of any crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, unless such persons have been pardoned, and idiots and insane persons.
NOTE: All persons able to meet the aforesaid requirements, who are not disqualified, are entitled to register and to have their names placed on the voters' list as qualified electors. Persons who cannot meet the aforesaid requirements, and who are disqualified under the Constitution, are not entitled to register and to have their names placed on the voters' list as electors.
TAX COLLECTOR'S DUTIES.
1. Tax collectors are required to keep a permanent qualification voters' book upon which all persons may qualify as voters. Section 34-101 of the Code of 1933.
2. Tax Collectors may use a separate printed oath for each person. Signing
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of the separate printed oaths is equivalent to signing in said voters' book. Section 34-102, Code of 1933.
3. The oath required of voters will be found in Section 3 of the Act approved February 5, 1945, Acts 1945, page 130.
4. The tax collector, or any clerk employed by him and authorized by him to receipt for taxes in the usual course of his employment, is empowered to take charge of the voters' books (or the separate printed oaths) and to administer the oath required to qualify an elector. Section 34-104, Code of 1933.
5. Tax collectors may open as many voters' books as necessary, and shall keep one open for signatures at his office at the county site, at all times when his office is open for the payment of taxes. He shall carry with him and keep open for signatures one book in each visit to the several militia districts for the purpose of collecting taxes. Section 34-105 of the Code of 1933.
NoTE: Section 34-106 of the Code of 1933 was repealed by an Act approved February 1, 1946, known as Act No. 633. By the expressed terms of Act No. 633 the Act is not effective in Fulton County and, therefore, Section 34-106 of the Code of 1933 remains of force in Fulton County.
6. Under Act No. 633 approved February 1, 1946, in all counties except Fulton, a person may register up to and through July 5, 1946. He must register four months before the general election. Section 1, Act No. 633, approved February 1, 1946. In Fulton County one must register six months before the general election or by May 5, 1946 as required by Section 34-106 of the Code.
NoTE: All persons whose names do not appear as qualified voters on the voters' list filed by the registrars for the general election of 1944 are required to register at some time after the date of filing of 1944 list and on or befora July 5, 1946, in order to be eligible to vote in elections of 1946. (This note is not applicable to Fulton County.)
7. Any person desiring to register as a voter may apply to the tax collector or his clerk, take the oath of an elector and subscribe his name in the voters' book underneath the written or printed oath, or upon a separate printed oath. The name of the street, the number of the residence, if any, the age and occupation should be noted. If the applicant is not eighteen years of age, or if the applicant has not been a resident in the State one year and in the county six months, at the time of making the oath and signing the book, an entry should be made showing the time when applicant will be eighteen years of age, or the date and the year when he will have resided in the State one year and the county six months. Section 34-107, Code of 1933.
NOTE: A person who is not eighteen years of age, but who will be eighteen years of age on or before November 5th of this year would be entitled to register as an elector and to vote in the elections to be held during the year.
8. The oath of the voters should be actually made. Section 34-109, Code of 1933.
9. If the applicant cannot read or sign his name, upon request the officer in charge should read or repeat the oath and sign th_e applicant's name. Section 34-108 of the Code of 1933.
10. If the signature of the person signing the book is not clearly legible, the officer in charge of the book shall write out the name in clear legible letters opposite the signature made by t~e applicant. Section 34-110, Code of 1933.
11. Section 34-111 of the Code of 1933 requires that the color of the voter be noted on the voters' book.
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12. Sections 34-113 and 34-114 are no longer in force, having been superseded by legislation abolishing poll tax.
13. Section 34-115 of the Code has been modified by the Act of 1946, as hereinbefore pointed out.
14. Chapter 34-2 of the Code of 1933 outlines the duties of the tax collector in making up and furnishing a list of the registered voters to the registrars of the county.
Tax collectors are required each year to make up the registration list for the year by putting on such list all persons whose names appear on the voters' list for 1944 and those who have registered at any time since the filing by the registrars of the 1944 voters' list, and to furnish said list to the registrars of the county. For particulars see Sections 34-201 and 34-202 of the Code of 1933.
The tax collector, the ordinary and the clerk of the Superior Court are required to file a list of disqualified voters with the registrars by the 20th day of April of each year. For particulars see Sections 34-203 and 34-204, Code of 1933.
NoTE: Sections 34-203 and 34-204 have been amended by the Act approved February 5, 1945, Acts 1945, pages 129-135. Tax collectors are not required to report the name of any person failing to pay any tax. As amended the two sections now require the tax collector, the ordinary and Clerk of the Superior Court tq report persons who are disqualified as provided for in the Constitution as outlined in Paragraph 1, Section 2, Article 2, Constitution of 1945 (Acts 1945, page 16).
PROCEEDINGS FOR REGISTRARS.
1. Section 34-401 requires the Board of Registrars to convene on April 20th, or Monday thereafter if April 20th falls on Sunday, and to begin the work of perfecting a true and correct list of the qualified voters of their county. The list furnished by the tax collector is prima facie evidence of the right of the person whose name appears thereon to vote. This Section provides the manner and method by which the registrars shall perform their work of perfecting a list of voters.
2. Section 34-402 of the Code of 1933 provides that all names on the list taken from the voters' book and not appearing on the list of disqualified voters shall be entered on the list of registered voters unless withheld therefrom by the registrars. No name appearing on the disqualified voters' list shall be taken as a registered voter unless placed thereon by the registrars. A name appearing on the list taken from the voters' book and not appearing as a qualified voter shall be withheld from. the list of registered voters when the registrars are convinced by sufficient legal proof that such person is, in fact, not qualified as an elector. A name appearing on the list of disqualified voters shall be entered on the list of registered voters when the name appears on the list taken from the voters' book and when, in addition thereto, the registrars are convinced by sufficient legal proof that such person was not disqualified, or that the disqualification has been removed. No name shall be entered on the list of registered voters unless it was signed in the voters' book as shown by the list taken therefrom.
3. Section 34-403 of the Code provides that the registrars shall complete their work by June 1st. It also provides that if the registrars failed or refused
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to complete the list by June 1st that the list may be filed at any time before the 20th day of August.
4. Within five days after completing the list of voters, the registrars shall file with the clerk of the Superior Court a complete list of the registered voters of the county as prepared and determined by them. The list shall be alphabetically arranged by militia districts, city wards, and shall be the list of voters to be used for the general election for that year and for the primaries or other elections held during the year. Sections 34-404 and 34-405, Code of 1933.
NoTE: Since the law requires the registrars to file the list of registered voters by June 1st, should the registrars file the list by June 1, 1946, it would be necessary for the registrars to make up and file a supplemental list of all persons who register after filing of the 1946 list including all who register up to and through July 5th. It would be the duty of the tax collector to furnish the registrars with the list of all persons registering after the filing of the 1946 list through July 5, 1946.
NoTE: I have not dealt with registration or supplemental list of voters for special elections. Should information be desired concerning such registration and supplemental list for special elections, I will be glad to undertake to furnish such information as I may have.
5. Chapter 34-6 of the Code of 1933 provides for a hearing after notice before the registrars for any applicant who had sought to register and was not permitted to do so, or whose qualifications are being contested by anyone.
Any person whose name appears on the voters' book is entitled to a hearing after notice, before his name should be left off of the voters' list. Section 34-604, Code of 1933. The registrars have power of subpoenaing witnesses for such hearings. Section 34-602 of the Code of 1933.
6. The list from the voters' book furnished by the tax collector to the registrars shall be open to public inspection, and any citizen of the county shall be allowed to contest the right of registration of any person whose name appears thereon, and upon filing a contest as to the qualification of the voter, the registrars shall notify the voter and pass upon the contest. Section 34-604, Code of 1933.
7. Paragraph 5, Section 1, Article 2, Constitution of 1945, Acts 1945, page 15, provides that any applicant denied the right of registering, or denied the right of appearing on the qualified voters' list, shall have the right of al'1 appeal to the Superior Court.
8. Section 34-701 of the Code provides that the registrars shall furnish the election managers printed or written copies of the list of registered voters for each militia district or city ward in the county.
TRANSFER FROM ONE COUNTY ANOTHER.
If a qualified registered voter changes his residence from one county to another, he shall have the right, upon application to registrars and satisfactory proof that he will be qualified to vote at an election in the new county, to have his name placed on the voters' list in the county into which he has removed. Section 34-8"04.
NoTE: The law does not require a transfer if the party can register and qualify in the manner hereinbefore pointed out. If otherwise qualified, if a person has been a resident of the State one year and the county six months, or will have been a resident of the State one year and the county six months at date
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of general election, such a person can register at any time up to and through July 5th, in counties other than Fulton, without a transfer even though he may at some time have registered in some other county of the State. If he is registered in one county but has moved to another and wishes to vote in the county to which he has removed, he may transfer after July 5, 1946, provided he is transferred as set out in Section 34-804 and the transfer is approved by the registrars of the county into which he has moved and his name is certified as a qualified voter.
The above is given as information only and expresses no legal opinion. It is furnished with the hope that it may be of some benefit to the tax collectors and registrars in the performance of their duties as such.
ELECTIONS, Where, When and How Held (Unofficial) A voter residing in a rural county may vote at the county seat rather than his own militia district only where the latter has no voting precinct.
March 26, 1948 Hon. V. C. Daves Representative, Dooly County
I am pleased to acknowledge your letter of March 24th, in which you request me to advise whether a qualified voter in a rural county can vote at his county seat if he prefers, instead of voting in his home precinct.
Your question is answered by Section 34-801 of the Code of Georgia, which provides as follows :
"All persons whose names appear on the list of registered voters placed in possession of the election managers, and no others, shall be allowed to deposit their ballots according to law, at the voting precinct of the militia district or city ward in which they are registered, but not elsewhere, except as hereinafter provided. If in any city ward or militia district a voting precinct is not established and opened, the county registrars shall furnish to the election managers at the voting precinct at the courthouse, at the county site, the lists of registered voters of such ward or militia district, and persons whose names appear on such lists shall be allowed to vote at the voting precinct at the courthouse, at the county site, under the same rules that would have governed if a voting precinct had been established and opened in said ward or militia district."
From the above provision of law, it would seem that a person is required to vote in his home precinct unless for some reason the same is not established or opened for voting purposes.
The right of a negro to vote in a primary has already been definitely and finally settled by the United States Supreme Court, and one does not have to agree with all of President Truman's civil rights to conclude that a negro does have the right to vote at a primary. Those who would deprive a negro of this right are simply defying the clear mandate of the United States Constitution and the decision of the United States Supreme Court.
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ELECTIONS-Where, When and How Held (Unofficial) The recommendation of the Grand Jury is mandatory as regards the use of the secret ballot in elections.
July 2, 1948 Mrs. Bessie Hatcher
I am pleased to acknowledge your letter of July 1st, in which you state that the grand jury of Twiggs County has recommended the use of the secret ballot in elections. You desire to know whether or not the recommendation of the grand jury in this respect is mandatory.
Under the Constitution and laws of this State, the Attorney General is prohibittd from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. You will therefore understand that I cannot give you an official ruling on the question propounded. However, I am glad to refer you to the provisions of law relating to the secret ballot, in the hope that the same may be beneficial and give you the desired information.
The Secret Ballot Act which you refer to will be found in the Acts of 1941, pp. 324-327. Section I of this Act reads in part as follows:
"In all primary elections, it shall be the duty of the county or city executive committee, or other party authority of the political party 'holding the election, to provide official ballots, with the names of all candidates who have properly qualified in accordance with the rules of such party, printed thereon; ..."
"Sec. 4. This Act shall not be operative in any county in the State until it is first recommended to be put into force and operation by a resolution of one grand jury. . . . provided further, that if at the end of one year the grand jury of any county which has adopted the provisions of this Act shall desire to discontinue the same, the Act may be discontinued upon a resolution by said grand jury recommending that its use and operation be discontinued. If this Act is adopted by any county and afterwards discontinued, then the system of voting in effect at the time of adopting this Act shall without further action become effective in such county."
I regret that I do not have the above laws in printed form, but I trust that the pertinent portions which I have set forth above will give you the desired information. I might also suggest that since this matter relates directly to Twiggs County, your county attorney will be in a position to give you additional information.
ELECTIONS-Where, When and How Held (Unofficial) The provisions of the Secret Ballot Law and the Australian Ballot law do not conflict, and where both have been adopted by a county, the provisions of both must be met.
July 28, 1948
Honorable G. A. Garrett I have your letter of July 24, in which you state that Walton County by
appropriate action of the Grand Jury, has elected to come within the provisions of the Secret Ballot law as well as the Australian Ballot law. You request my opinion as, to whether or not both of these laws must be given effect in an elec-
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tion, or whether one obviates the application of the other. As you know, I am prohibited by law from rendering official opinions to
anyone except the Governor and heads of the various State departments, therefore, the following remarks are entirely personal, unofficial, and not binding on anyone.
It is my opinion that there is no conflict in the provisions of these two laws and that both may operate harmoniously together. Therefore, if your County has made both of them applicable, the provisions of both laws must be fully met.
ELECTIONS-Where, When and How Held (Unofficial) The Secret Ballot Law may only be made effective by the Grand Jury.
Honorable Donald G. Stephenson Attorney at Law
July 28, 1948
I have your letter of July 26, in which you request my opinion on the following question:
Can a County Democratic Executive Committee put the 1941 Secret Ballot Act in force in a primary election held in the county (either a state or county primary) without a Grand Jury of the county having first made a recommendation to that effect as provided for in the Act?
As you know, I am prohibited by law from rendering official opinions to anyone except the Governor and heads of the various State departments, therefore, the following remarks are entirely personal, unofficial, and not binding on anyone.
Section 4 of the 1941 Secret B.allot law provides that the Act "shall not be operative in any County in the State until it is first recommended to be put into force and operation by a resolution of one Grand Jury." (Ga. Laws 1941 pp. 324-327; Ga. Code Ann. Sec. 34-1917).
It would seem from the above quoted portion of the statute that the Secret Ballot law may not be made applicable by any other agency than the Grand
Jury.
ELECTIONS-Where, When and How Held (Unofficial) In the absence of a formal resolution, the question whether the Grand Jury has adopted the secret ballot is one of intention.
August 16, 1948 Hon. Brantley Edwards Attorney at Law
I am pleased to acknowledge your letter of August 12th, in which you desire information as to whether a grand jury can adopt the provisions of Sections 34-1914 to 34-1916' relating to secret ballot without a formal resolution of that body.
Section 34-1917 of the Amended Code provides in part as follows: "This law, Sections 34-1914 to 34-1916, shall not be operative in any county
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in the State until it is first recommended to be put into force and operation by a resolution of one grand jury. . . ."
It would seem that the rule of construction to be followed in determining the effect of the language used by the grand jury, would be to seek the intention of that body as set forth in the provision relating to the secret ballot system. As you know, in construing the acts of the General Assembly the legislative intention is the primary rule to be followed. It would therefore be my personal view that this same rule should be followed in reference to construing the ultimate effect to be given language used by the grand jury. Since this is a matter which addresses itself directly to the county attorney, it would be improper for me to attempt to give a ruling relating to the language used in this instance by the grand jury. This is a matter over which I am forbidden by law to render an official opinion.
ELECTIONS-Where, When an.d How Held (Unofficial) Absentee ballots in Primary are handled by Board of Registrars or County Ordinary. Only members of immediate family may give notice of intention to be absent.
August 18, 1948 Honorable D. G. Hollaway, Chairman Democratic Executive Committee Quitman County
I have your letter of August 13, in which you request my opinion on two questions as follows:
1. Which is the proper agency for handling absentee ballots in a Primary, the County Executive Committee or the Board of Registrars? 2. Who may request an absentee ballot for an absent person? As you know, I am prohibited by law from rendering official opm10ns to anyone except the Governor and heads of the various State departments, therefore, the following remarks are entirely personal, unofficial, and not binding on anyone. In answer to Question 1, I call your attention to Georgia Code Annotated, Sections 34-3301, et seq. These Sections provide that the Board of Registrars or the County Ordinary shall receive the application for ballot from the absentee and send the ballot out to the voter. There does not seem to be any statutory authority for the Executive Committee to handle this phase of voting, since both Primaries and General Elections are within the scope of the Sections above referred to. In answer to Question 2, the statute provides that either the voter himself "or some member of his immediate family,-viz., husband or wife, father or mother, sister or brother, or son or daughter ..." shall give the required notice of the intention of the voter to be absent. Under the established rule of statutory construction, it is my unofficial opinion that only the voter himself and those persons bearing a degree of relationship to the absentee voter specifically stated in the Section may make the request for the absentee ballot for the voter.
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ELECTIONS-Where, When and How Held (Unofficial) A voter unable, by reason of physical handicap or inability to read English, to prepare his ballot may, upon making oath thereto, secure outside assistance within the polling place.
August 25, 1948 Hon. M. Price, Judge Superior Court, Atlantic Circuit
I am pleased to acknowledge your letter of August 19th, in which you ask my unofficial opinion relating to the construction of Section I of the Acts of 1943, page 290.
Part of the Section you are interested in reads as follows: "Any voter applying to vote who shall state under oath in writing to any of the managers, which said oath may be administered by a.ny of the managers, that by reason of his inability to read the English language, or by reason of blindness or the loss of the use of his hands or other physical infirmity, he is unable to prepare his ballot, may have the assistance of any two managers, jointly or separately, in the preparation of his ballot, ..." (Emphasis supplied) I am inclined to agree with your position that the voter may be administered the oath by any of the managers or by a notary public or other officer qualified to administer oaths. It would seem that the language, "which said oath may be administered by any of the managers," is permissive and not mandatory, and that the voter could either take the oath before one of the managers or some other person duly qualified to administer oaths. As pointed out in your letter, I cannot give you an official opmwn on this question, but I am glad to give you my personal views in the matter.
ELECTIONS-Where, When and How Held (Unofficial) 1. Voters residing in city ward or militia district having no voting precinct may vote at voting precinct at courthouse. 2. A voter moving to another militia district or county after signing oath in voters' book may vote there upon proof of qualification.
September 17, 1948 Honorable J. H. Darby J ustisce of the Peace
I am pleased to acknowledge receipt of your letter of September 13, 1948, in which you ask the following question:
" . . . whether or not anyone registered in any other districts in the county can vote in the county site (Greensboro) by signing affidavit. Greene county has a population of approximately 14,000."
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone other than the Governor and heads of the various State Departments; therefore, the information contained in this letter is not official, and is not binding upon anyone.
The following Code Sections are quoted for your information: Code of Georgia, 1933, Sec. 34-801: "All persons whose names appear on the list of registered voters placed in possession of the election managers, and no others, shall be allowed to deposit
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thf:ir ballots according to law, at the voting precinct of the militia district or city ward in which they are registered, but not elsewhere, except as hereinafter provided. If in any city ward or militia district a voting precinct is not established and opened, the county registrars shall furnish to the election managers at the voting precinct at the courthouse, at the county site, the lists of registered voters of such ward or militia district, and persons whose names appear on such lists shall be allowed to vote at the voting precinct at the courthouse, at the county site, under the same rules that would have governed if a voting precinct had been established and opened in said ward or militia district."
Code of Georgia, 1933, Sec. 34-804: "If any person shall change his residence from one militia district to another or from one county to another after signing the oath in the permanent qualification or voters' book and should desire to vote in any election in the district or county into which he removes at which he would be qualified to vote, he shall have the right, upon application to the registrars and satisfactory proof before them that he will be qualified to vote at said election, to have his name placed upon the list of registered voters for the district or county into which he has removed, for said election, with the same rights as others registered for said election." "Editorial Note.-Acts 1919, p. 272, relating to registration and voting by a qualified voter at a precinct nearest his residence, though in a district othel' than that of his residence, is omitted from this Code because of the limitation as to the districts to which applicable, it expressly providing that it should not apply to districts in which is located a town or city with a population not exceeding 10,000 and in counties having a population of more than 45,000 'by United States census of 1910'." For your further information and guidance, there is enclosed a mimeographed outline of the general laws of the Constitutional requirements for registration as voters.
ELECTIONS-Where, When and How Held (Unofficial) 1. A sample marked ballot may be used by a voter for reference in preparing his ballot. 2. A voter unable, by reason of physical handicap or inability to read English, to prepare his ballot may, upon making oath thereto, secure outside assistance within the polling place.
September 20, 1948
Mr. W. W. Duffy I am sorry I was unable to see you when you were in the office last
Friday at the time I was engaged in a meeting. Mr. Robert L. Smith, Assistant Attorney General, informs me you talked
with him, and that you wish to know whether it is permissible for anyone to have a sample marked ballot while voting at the poll, and any information pertaining to individuals assisting a voter in making out his ballot.
As you know, I am prohibited by law from rendering official opinions to anyone other than the Governor and the heads of the various state departments. Therefore, the information contained in this letter is unofficial, and is not binding upon anyone.
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For your assistance, Code Section 34-1905 of the 1943 Code, 1947 Supplement, is quoted below:
"Only one voter shall be allowed in a compartment of a room or booth or enclosure at a time, and immediately upon entering the booth or compartment the voter must procure a ballot from the managers, immediately prepare, vote the same and retire. It shall be the duty of the managers before handing a ballot to the voter to ascertain that he is duly registered and qualified under the law to cast a vote, then write the name of the voter on the sheet of the ticket or ballot, and after the voter has prepared the ballot and before depositing the same in the ballot box, it shall be the duty of the manager to see that the ticket attempted to be voted by the voter bears the same letter or designation and the same number as the sheet on which appears the name of the identical voter, and it shall be unlawful for any manager or clerk to receive or count any ticket or ballot except in conformity with these regulations, and any voter attempting to vote any other ticket or ballot, knowingly or wilfully, shall lose his vote for the election in which he offers to vote. If a ticket shall be spoiled by a voter it shall be the duty of the managers, before delivering another ticket or ballot to the voter, to get from the voter the ticket or ballot so spoiled. Any voter applying to vote who shall state under oath in writing to any of the managers, which said oath may be administered by any of the managers, that by reason of his inability to read the English language, or by reason of blindness or the loss of the use of his hands or other physical infirmity, he is unable to prepare his ballot, may have the assistance of any two managers, jointly and not separately, in the preparation of his ballot. No voter shall at any time t.ake or remove any ticket or ballot from the poilling place, The managers shall preserve these written oaths or affidavits, and return them with the other election papers to the proper officials." (Emphasis supplied).
Your particular attention is invited to the emphasized portion of the above quoted Code Section.
There is no law prohibiting anyone from having a marked ballot as an outline of his intended plans for voting. He is prohibited, as you will note from the above, from taking any ballot from the voting place.
ELECTIONS-Where, When and How Held (Unofficial) Write-in Votes are Legal.
September 24, 1948
Hon. A. G. Smith, Sheriff Appling County
I am pleased to acknowledge your letter of September 17th, in which you ask whether or not a voter may scratch the name of a regular nominee in the general election and write in the name of some other person for the office which is the subject of the election.
There is no law in this State which prohibits a duly qualified voter from scratching the name on the printed ballot and writing in the name of some other person for whom he desires to vote.
Under the Constitution and laws of this State, the Attorney General is prohibited from giving official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the
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interests of the State. You will understand therefore, that this letter is not an official opinion, but is simply an expression of my personal views in relation to the law on this subject.
ELECTIONS-Where, When and How Held (Unofficial) Absentee ballots are counted in the ward or district, rather than at the county seat.
October 4, 1948 Hon. F. D. Maxey, Ordinary Oglethorpe County
I am pleased to acknowledge your letter of September 27th, in which you ask whether absentee ballots in the general election should be counted in the districts or at the county site.
I think your inquiry is answered by Code Section 34-3312 of the Code of Georgia, which provides as follows:
"On the day of the election the registrars shall deliver the box containing the sealed ballots, together with the letters of application and return coupons attached, with a list of the same in triplicate, sealed, to the managers of the election, at the ward or district in which the ballots are to be cast, and shall take receipt for said box and sealed papers. The registrars shall also deliver to the managers the pad or pads with stubs showing series letters and numbers of ballots furnished, and no ballot shall be counted unless the series lettel' and number on the stub shall correspond with the series letter and number on the ballot contained in the envelope returned by the absent voter."
Section 34-3313 provides as follows: "At the close of the regular balloting the box shall be opened by thf:' managers of the election, and the ballots deposited in the regular ballot box, as follows: As each envelope shall be removed from the box, the name of the voter shall be called and checked as if the voter were voting in person. If found entitled to cast his vote, the envelope shall then, but not until then, be opened, and the ballot deposited in the regular box without examining or unfolding it." From the above provisions of law, it seems clear that these absentee ballots should be delivered to the managers of the election "at the ward or district in which the ballots are to be cast." You understand of course that this letter is not an official opinion, since under the law the Attorney General can only rf:nder official opinions to the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. I am glad however, to refer you to the above provisions of law with the hope that same will give you the desired information.
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ELECTIONS-Where, When and How Held (Unofficial) The Board of Registrars must mail absentee ballots to voters requesting them within the specified time.
October 4, 1948 Ron. Alva C. Smith, Member Board of Registrars Muscogee County
I am pleased to acknowledge your letter of September 24th, in which you ask if it is the duty of the Board of Registrars to mail absentee ballots to qualified voters who request same in the regular election of November 2, 1948.
Chapter 34-33 of the Code of Georgia sets forth the laws in reference to voting by mail. Section 34-3301 of the Amended Code provides that a voter desiring to vote an absentee ballot must give notice in writing of such intention "to the registrars or the ordinary of his county, not less than ten days nor more than sixty days prior to the primary or general eiedion in which he may desire to participate." (Emphasis supplied)
The above provision of law applies with equal force to the general election, and places the same responsibility on the registrars for that election as it does in the primary.
Section 34-3302 likewise refers to the general election as wefl as the primary. A careful reading of all of these provisions with the exception of Section 34-3310 which specifically refers to primary elections, will illustrate that these laws apply to both the general election and the primary. You are of course familiar with the amendments to certain of these Code Sections as set forth in the Cumulative Pocket Part of the Supplement.
Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. You will therefore understand that this letter is not to be construed as an official opinion, but is simply being sent as a matter of information. I would suggest that you confer with your county attorney concerning these inquiries, since he is in a position to give you an official opinion in the premises.
ELECTIONS-Where, When and How Held (Unofficial) The Absentee Voting Law is not applicable to municipal or city elections.
October 5, 1948 Ron. S. B. Wallace, Ordinary Spalding County
I am pleased to acknowledge your letter of October 1st, in which you ask whether or not the absentee voting law applies to municipal or city elections where city officers are being voted upon.
Of course you understand that under the law, I cannot give you an official opinion on this question, since the Attorney General can only render such official opinions to the Governor and heads of the various departments of State upon matters pertaining to the operation of the State government. Since your question relates only to cities and municipalities, the city attorney would be in a positicm to render an official opinion on this question. I am glad however,
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to give you my view of the matter purely as a matter of information, and with the understanding that same is to be treated as personal and not binding upon anyone.
A reading of Chapter 34-33 of the Code and the amendments found in the Pocket Part Supplement (Acts 1943, page 228) indicate that this law does not apply to municipalities or cities when they are conducting a local election. You will note that Chapter 34-33 as amended, refers to the duties of the registrars and the ordinary. No mention is made in any of the sections of this law of the duties of municipal officials holding an election. This would indicate to me that the absent~ ballot lf!W Q.oes not apply to municipal or city elections.
ELECTIONS-Where, When and How Held (Unofficial) 1. A voter unable by reason of physical handicap or lack of knowledge of English to make out his ballot, upon oath duly made to that effect, may be assisted by a freeholder. 2. Ballot boxes may not be opened before close of election. 3. All proposed constitutional amendments should be voted on.
October 19, 1948
Honorable B. H. Ralston This will acknowledge receipt of your letter of October 14, 1948, in which
you ask the following questions: "May a clerk in an election assist a voter who is unable to fix his ticket,
or must it be one of the three managers? "If the hours for holding an election in the rural districts is 7 A. M. to
6 P. M., is it legal to begin counting the ballots before 6 P. M.? "In regard to constitutional amendments, is it necessary to vote 'For'
or 'Against' where the amendments apply to some other part of the state, or just mark them out?"
Under the Constitution and laws of this State, the Attorney General is prohibited from giving official opinions to any one other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. However, it is a pleasure for me to refer you to the provisions of law applicable to your questions as a matter of information.
In answer to your first question, your attention is invited to the Code of Georgia 1933, Section 34-1905, which reads as follows:
"34-1905. Voting; procuring of ballot; duty of managers; spoiling ballot; assistance in preparing ballot.-Only one voter shall be allowed in a compartment of a room or booth or enclosure at a time, and immediately upon entering the booth or compartment the voter must procure a ballot from the managers, immediately prepare, vote the same and retire. It shall be the duty of the managers before handing a ballot to the voter to ascertain that he is duly registered and qualified under the law to cast a vote, then write the name of the voter on the sheet of the ticket or ballot, and after the voter has prepared the ballot and before depositing the same in the ballot box, it shall be the duty of the manager to see that the ticket attempted to be voted by the voter bears the same letter or designation and the same number as the sheet on which appears the name of the identical voter, and it shall be unlawful for any manager or clerk to receive or count any ticket or ballot except in conformity with
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these regulations, and any voter attempting to vote any other ticket or ballot, knowingly or wilfully, shall lose his vote for the election in which he offers to vote. If a ticket shall be spoiled by a voter it shall be the duty of the managers, before delivering another ticket or ballot to the voter, to get from the voter the ticket or ballot so spoiled. Any voter applying to vote who shall state under oath in writing to any of the managers, which said oath may be administered by any of the managers, that by reason of his inability to read the English language, or by reason of blindness or the loss of the use of his hands or other physical infirmity, he is unable to prepare his ballot, may have the assistance of any two managers, jointly or separately, in the preparation of his ballot, or may select any freeholder of his choice to aid him in the preparation of his ballot. No voter shall at :;tny time take or remove any ticket or ballot from the polling place. The managers shall preserve these written oaths or affidavits, and return them with the other election papers to the proper officials." (From 1947 Cumulative Pocket Part).
In answer to your second question, the following Code Section is cited to you as applicable:
"34-3202. Exhibition and locking of ballot box; count of votes; certification of results.-Before any ballots are received at such primary elections, and immediately before opening the polls, the managers shall open each ballot box to be used in the election, and shall exhibit the same publicly, to show that there are no ballots in the box. They shall then close and lock or seal the box, except the opening to receive the ballots, and shall not again open the same until the close of the election. They shall keep a list of voters voting at the election, and shall, before receiving any ballot, administer to the voter an oath, provided the voter's vote is challenged, that he is duly qualified to vote according to the rules of the party, and according to the election laws of this State, and that he has not voted before in such primary election then being held. At the close of the election the managers shall proceed publicly to count the votes and declare the result. They shall certify the result of the election, and transmit the certificate with the tally sheet or poll list, together with the ballots cast, and all other papers relating to such primary election, within the time and in the manner prescribed in this Chapter.
In answer to your third question, see Code Section 2-8601, which reads as follows:
"2-8601. Paragraph 1. Proposal by General Assembly; submission to people. Any amendment or amendments to this Constitution may be proposed in the Senate or House of Representatives and if the same shall be agreed to by two-thirds of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, with the yeas and nays taken thereon. And the General Assembly shall cause such amendment or amendments to be published in one or more newspapers in each Congressional District, for two months previous to the time of holding the next general election and shall also provide for a submission of such proposed amendment or amendments, to the people at said next general election, and if the people shall ratify such amendment or amendments, by a majority of the electors qualified to vote for members of the General Assembly, voting thereon, such amendment or amendments shall become a part of this Constitution. When more than one amendment is submitted at the same time they shall be so submitted as to enable the electors to vote on each amendment separately."
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ELECTIONS-Where, When and How Held (Unofficial) Write-in votes are valid.
December 7, 1948 Mrs. E. B. Spivey, Ordinary Chattahoochee County
This will acknowledge receipt of your letter of December 4th in which you ask my opinion as to whether or not a voter may write in the name of a person not appearing as a candidate on the ballot in the regular General Election for Justices of the Peace.
Under the law I am prohibited from giving opinions to anyone except the Governor and to the heads of the various State departments. Notwithstanding this limitation, however, I am always pleased to be of assistance to our County officials whenever I can, by giving helpful information. Anything that I may say in reply to your letter is to be considered as information only and not binding upon anyone in any manner whatsoever.
In Stewart vs. Cartwell, 156 Ga. p. 198, the Supreme Court of Geogria said: "The Legislature can not, in our judgment, restrict an elector to voting for some one of the candidates whose names have been printed upon the official ballot. He must be left free to vote for whom he pleases, and the Constitution has guaranteed to him this right." It would appear that the overwhelming weight of authority is that where there is no express statute prohibiting a person from voting for a candidate whose name does not appear upon the official ballot, a voter may properly write1 in the name of the candidate whose name does not appear upon the official ballot and cast his. vote for such a person. It would also appear that write-in votes should be counted when the desire of the voter is clearly discernible. In 18 Am. Jur., Elections, Section 191, it is indicated very strongly that even where a statute prohibits the writing in of the names of candidates upon the ballot, such statute itself is unconstitutional.
ELECTIONS-Where, When and How Held (UnoHicial) In absence of express contrary statute, and probably in spite thereof, writein votes are valid.
December 27, 1948 Honorable R. Cooper Wood
I am pleased to acknowledge receipt of your letter of December 8, 1948. Under the law I am prohibited from giving opinions to anyone except the Governor and to the heads of the various State Departments. Notwithstanding this limitation, however, I am pleased to be of assistance to our county officials whenever I can by giving helpful information. Anything that I may say in reply to your letter is to be considered as information only and not binding upon anyone in any manner whatsoever. In Stewart v. Cartwell, 156 Ga. p. 198, the Supreme Court of Georgia said: The Legislature cannot, in our judgment, restrict an elector to vote for someone of the candidates whose names have been printed upon the official ballot. He must be left free to vote for whom he pleases, and the Constitution has granted to him this right."
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It would appear that the overwhelming weight of authority is that where there is no express statute prohibiting a person from voting for a candidate whose name does not appear upon the official ballot, a voter may properly write in the name of the candidate whose name does not appear upon the official ballot and cast his vote for such a person. Such write-in votes should be counted when the desire of the voter is clearly discernible.
In 18 Am. Ju., Elections, Sections 191, it is indicated very strongly that even where a statute prohibits the writing in of the names of candidates upon the ballot, sueh statute itself is unconstitutional.
ife Should there be a dispute as to who is the legal holder of an office,
proper remedy to determine the question is for the person claiming the office to bring a writ of quo warranto.
An election for Justltce of the Peace and Constable is a General State Election. See Rose v. The State, 107 Ga. 702.
Once an election has been held, .such as you mention, the procedure for contesting is governed by Chapter 34-28 of the 1933 Code.
When no contest has been filed and a commission has been issued by the Governor, it is prima fa0ie evidence of the right to the office and I know of no reason why you should not turn over the docket, papers and take a receipt from such official upon his demand or request.
While the commission is prima facie evidence of the right to the office, it is not conclusive and a person having a legal right to do so could rebut such presumption by proper proceedings in a proper court.
ELEEMOSYNARY INSTITUTIONS-Milledgeville State Hoapital (Unofficial) In proceedings for legal restoration of sanity the 10-day notice may not be waived.
February 9, 1948 Honorable Homer Legg, Ordinary
I beg to acknowledge receipt of your letter of January 31, 1948, in which you request an opinion as to whether in hearings on legal restoration of sanity it is permissible, under the law, for the three nearest relatives to acknowledge service and waive the' ten day service, so that the matter may be immediate!y passed on.
You will understand, as stated in your letter, that the Attorney General\ is not authorized under the law to give official opinions on matters except when directed by the Governor and heads of the several State Departments. Therefore, the opinion herein given is strictly personal, unofficial and not binding.
The Act of 1947 provides the only method for proceedings for restoration to sanity where persons have been committed to the Milledgeville State Hospital, or where a guardian has been appointed for such insane person. It appears from this act that it is necessary for a ten day notice to be given and I know of no law authorizing in cases of this kind for the relatives or guardian to acknowledge service or waive the notice required under the Act. Therefore, it is my unofficial opinion that it will be necessary to give notice as provided in the Act as the provisions thereof appear to be binding.
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ELEEMOSYNARY INSTITUTIONS-Milledgeville State Hospital Physical absence of a patient from the confines of the hospital, while still under its supervision, does not constitute such absence as would re:quire examination de novo for readmission.
March 17, 1948 Honorable W. E. Ireland, Director State Department of Public Welfare
I have your letter of March 11 in which you request my interpretatio'n of Code Section 35-239.
The Section in question reads as follows: "When a pe:rson shall have been properly received as a patient, but sha!ll be absent for as long as 12 months, either from discharge, escape, or removal by friends, he shall not be received at the Hospital without going through the process required in this Chapter, according to the. class of patients of which he may be." It is my opinion that the intention of the Legislature in enacting this Section was to prevent the occurre:nce of any practices at the institution which would permit patients to absent themselves from the institution for long periods of time and then return, or be returned, without examinaion de novo. Mere physical absence from the institution is not, however, the test provided by the Section for de:termining when the entrance process must he repeated. On the contrary, three specific types of absence are designated. Thety' are: absence by discharge, escape, or removal by friends. So long as the patient is under the supervisory and administrative authority and control of the institution, he is not ''absent'' within the meaning of the statute. Should a patient be absent from the physical confines of the institution for a period of over 12 months but still remain under the administration and supervision of the institution, it is my opinion that such a patient need not be 're-' quired to undergo the entrance process upon a return to the institution itse:lf. The very nature of the work performed at the Milledgeville State Hospital is such as to indicate the necessity of placing patients outside the: physical boundaries of the institution from time to time. To require that the cumbersome process of admission to the institution be repeated when it is not me:dically necessary would operate only to complicate an already complicated situation.
ELEEMOSYNARY INSTITUTIONS-Milledgeville State Ho&pital (Unofficial) The power of the Board of Control to appoint marshal has been transferr6d to the Department of Public Welfare.
December 6, 1948 Mr. J. C. Cooper . Clerk, Superior Court
You ask in your letter if there is any Georgia Law which directs you to~ swear in the Marshall appointed by the Board of Control of the State Mentaa Hospital.
As you know I am prohibited by law from rendering official opinions to anyone except the Governor and the several Department heads of our State government, so that the ensuing remarks are necessarily unofficial.
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By an act of the General Assembly of 1943, Code Section 99-434, the Board of Control was abolished and all its powers transferred to the State Department of Public Welfare; therefore, there is no longer in existence a Board of Control. This power to appoint a Marshall given in Code Section 35-219 is thus now in the Department of Public Welfare. The powers set out in Section 35-201 are likewise in said Department.
I do not find any specific statute which directs you to swear in and administer the oath of office to the appointed Marshall; thi~ presumably is a custom derived from a regulation of the Board or Department. Of course, in Code Section 24-2720 the respective Clerks of our Superior Courts are given the blanket authority to administer oaths.
I would suggest that you write the State Department of Public Welfare for further elaboration regarding the point.
EXECUTIVE DEPARTMENT-State Board of Accountancy A member of the State Board of Accountancy who has not' protested the eligibility of one elected to succeed him, and who has yet failed to attend the regular meetings of the Board, has relinquished his right as a member.
December 21, 1948 Honorable R. C. Coleman Joint Secretary State Examining Boards Department of State
This acknowledges receipt of your letter of December 17, 1948, requesting a ruling between Mr. William J. Carter and Mr. Hubert E. Ulmer as to which is a legally constituted member of the Georgia State Board of Accountancy.
You also request a ruling as to whether the Board, as now constituted, has the authority to re-examine or regrade the examination papers of a candidate who took the C. P. A. examination in November, 1945 and who, in the opinion of the then membtrs of the Board, did not make a grade sufficiently high to pass the examination.
An examination of the records of the Executive Department has been made with reference to the appointment of Mr. Carter and of Mr. Ulmer, and I find the following:
That the Honorable William J. Carter was appointed to the Board, of Accountancy by Executive Order on June 30, 1945, expiring on June 30, 1948; that on October 5, 1948, the Honorable Hubert E. Ulmer was appointed as a member of the Board for a term of four years.
On November 17th, 18th and 19th, 1948, the Georgia State Board of Accountancy held its regular meeting, at which time Mr. Garter did not attend. Mr. Ulmer attended this meeting as a member of said Boar<\ and discharg:e<l such duties as are required of a member, and he was duly paid as a member' of the Board for these services.
Section 89-501 (7), 1933 Code Ann., reads as follows: "By abandoning the office and ceasing to perform its duties, or either." In the case of Patten et al v~. Miller, 190 Ga. 123, at page 139, as to the question of abandonment, the following is the language of the Court in that case:
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" ... the determination of the question whether an officer has abandoned an office is dependent upon his overt acts rathE>r than upon his declared intention, and the law will infer a relinquishment where the conduct of th1 officer indicates that he has completely abandoned the duties of the officE>."
In the case of Parkerson vs. Hart, 200 Ga. 660, at page 663, the Court held: "Under the general law of this State, all offices in the State shall be vacated, 'by abandoning the office and ceasing to perform its duties, or either.' Code, SEoc. 89-501 (7)." The former County Superintendent of Schools did not appeal from the order of his suspension, and he ceased to perform the duties of his office. No formal words of reununciation are contemplated as being required of the holder of an office where from any cause he ceases to perform its duties. It is my opinion, from the above quoted law, that any person or officeholder who abandons his duties relinquishes his legal title to said office. It appears that Mr. Carter did not attend the regular meeting of the Georgia State Board of Accountancy held on November 17th, 18th and 19th, 1948; that he made no protest at that time as to the eligibility of Mr. Ulmer, who had succeedEod him as a member of this Board; nor has Mr. Garter instituted any legal proceeding to determine the controversy between him and Mr. Ulmer as to who is the legally constituted member of the Board. Thus, from the quotations of law above given, and the facts, it is my opinion that Mr. Carter has relinquished any legal right he may have had as a member of said Board, and that his. overt .acts constitute an abandonment of his claim. As to the second question, regarding the re-examination or regrading of the papers of the candidate, the law is silent on this matter" Therefore, I am of the opinion that this quEostion addresses itself to the sound discretion of the Board.
.EXECUTIVE DEPARTMENT-Governor The Governor may use contingency funds in aid of studies of the Interim Council on Regional Planning for Education in the South.
April 13, 1948 Honorable M. E. Thompson Governor of Georgia
In your recent letter you request me to give you my official opmwn on whether you, as Governor of the State of Georgia, have authority to make payments out of your contingency funds in order to financially aid in the studies to be conducted by means of the Interim Council on Regional Planning for Edu.cation in the South.
I note furthEor that it is your view that such studies are necessary. Your contingent funds, and the purposes for which they can be used are specifically provided for in Section 32 (c) of the General Assembly Appropri.ation Act of 1943, in the sum of $5,000.00. However, thEose funds appear to me to be limited in use to certain expenditures for defraying the cost of particular items of the Executive Department. On the other hand, under the Constitution, State funds can be spent foa educational purposes. In the case of Worth v&. The Board of EdUC~ation, 177 Ga. 166', the Supreme Court held that the words "educational purposes" are to be .:~iven the broadest significance. It therefore follows that you would have a broad
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discretion in determining whether the studies of the work of the Council would be beneficial to our educational program in the South.
After investigating the purposes for which such studies will be made, and knowing your vi~ws as I do, I am of the very definite opinion that the use of additional funds for this purpose would be worthwhile and of great value to the State of Georgia and to the Southland.
Inasmuch as the funds requested relate to matters pertaining to investigations and explorations in the field of higher education, which comes under the jurisdiction of the State Board of Regents, it is my opinion that, upon your request to the Board, and subject to the approval of the Budget Bureau, such funds as you may deem appropriate for Georgia to contribute in this investigation could be legally expended by and through the Board of Regents.
EXECUTIVE DEPARTMENT-Governor The Governor has no authority to dissolve the commission of a Sheriff for violation of liquor laws until final adjudication or Grand Jury action.
June 22, 1948
Honorable M. E. Thompson Acting Governor
In reply to your letter propounding the following question:
Please give me your opinion as to whether the Governor of Georgia has the
authority to dissolve the commission of a Sheriff of a county who has been
convicted of a conspiracy to violate the federal liquor laws, but who has: ~ow
pending in the Court an appeal from the original conviction.
'
It is my opinion that undH the circ*mstances set forth above that you, as
Governor, have no authority to dissolve the commission issued to the Sheriff
until there has been final adjudication on the appeal or proper Grand Jury
action.
EXECUTIVE DEPARTMENT-Governor The Governor may be inaugurated before the regular session of the General Assembly in January by the calling of a Special Session after the General Election (1) under the Governor's power to convoke the General Assembly on extraordinary occasions; and (2) Pursuant to certification of 3/5 of the members of the General Assembly that an emergency exists.
September 9, 1948
Honorable M. E. Thompson Governor of Georgia
I note from a press release to the Atlanta Journal today a statement fro:m you to the effect that "If the Attorney General advises me that the G~neral Assembly can inaugurate soon after the General Election I shall be glad to call a session of the General Assembly for that purpose.''
I am presuming that the statement refers to the question of whether the General Assembly could inaugurate Herman Talmadge as Governor of Georgia after he is elected in the General Election after the election returns are proper-
217
ly ctrtified to the Secretary of State and before the regular session in January,
1949.
In view of tHis press release and the apparent urgency for a ruling on the
question, I respectfully submit my advisory opinion to you in advance of a
formal letter request.
There are two methods by which the General Assembly could be convened
immediat&ly after the General Election on November 2nd, and before the regu-
lar session on the second Monday in January, 1949:
First, the Governor himself has the power to convoke the General Assembly
on extraordinary occasions; and
Second, if three-fifths of the members of both Houses certify to the Gov-
ernor that in their opinions an emergency exists in the affairs of the State, the
Governor must convene the General Assembly in extraordinary session within
five days after he receives the certificates.
If the Gentral Assembly is convened by either of these methods, ~n m,y
opinion there is no legal bar to the General Assembly's canvassing the election
returns for Governor and declaring the results thereof, and inaugurating the
Governor-Elect.
As a matter of information it is important for you to observe that in the
provisions authorizing the convening of the General Assembly in extraordinary
session the members must be composed of the incumbent Representatives. More-
over, such a session would in no wise affect the tenure of their office since they
have been elected for two years and shall serve until the time fixed by law for
the convening of the next General Assembly, which, of course, would be on the
second Monday in January, 1949.
In view of the fact that your term of office as Lieutenant Governor shall
expire upon the qualification of the Governor elected for the unexpired term,
the General Assembly would be authorized to canvass the votes for Lieutenant
Governor and declare the results thereof, and likewise install the Lieutenant
Governor to fill the unexpired term for which you were elected.
EXECUTIVE DEPARTMENT-Merit System Under a rule of the Personnel Board that appeals from dism;issal shall be filed within 15 days, the day of dismissal is not counted.
September 13, 1948 Hon. Edwin L. Swain, Director State Merit System of Personnel Administration
I am pleased to acknowledge your letter of September 8th, in which you state the following:
"On August 24, 1948, an employee in an agency under the State Merit System of Personnel Administration was handed a letter of dismissal, effective at the close of business on that date. The dismissed employee delivered to me a letter of appeal at approximately 11:30 on the morning of September 8, 1948, which was address<:d to the State Personnel Board."
Then, you cite certain rules and regulations of the Personnel Board as follows:
"Section 12.400 .... Such employee may appeal to the Board within fifteen days from effective date of dismissal .... "
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"Section 14.400 .... A permanent employee who is dismissed, suspended, or demoted shall have the right to appeal to the Board not later than fifteen days after notice of the dismissal, suspension, or demotion....."
You desire my opinion as to whether or not the appeal was filed within the fifteen day period provided for by the above quoted rules and regulations.
Code Section 102-102 (8) provides: "When a number of days is prescribed for the exercise of any privilege, or the discharge of any duty, only the first or last day shall be counted; ~nd if the last day shall fall on Sunday, another day shall be allowed in the computation." The above provision of law was applied by the Court of Appeals in the case of Cason v. The State, 60 App., page 626, as follows: "(I) If we exclude April 17, 1939, the date on which the decision complained of was made, as the first day of the period, and reckon twenty days thereafter, the last or twentieth day would fall on Sunday, May 7. Hence the last day for tendering the bill of exceptions being Sunday, May 7, the following day, May 8, is super-added by the Code, Section 102-102 (8), and the bill of exceptions, having been tendered and signed on Monday, May 8, was tendered and signed in time." The law relating to the tendering and signing of bills of exceptions provides: "The bill of exceptions shall be tendered and signed within twenty days from the rendition of the decision.'' (Code Section 6-903). Following the reasoning of the above case, I am of the opinion that the appeal in the present case was filed within fifteen days or "not later than fifteen days after notice of the dismissal" as required by the rules and regulations of the State Personnel Board. August 24th, the day on which the dismissal became effective, should not be counted in the fifteen day period, but rather the calculation should begin on August 25th, that is, the day following the letter of dismissal and extending through September 8th of that year.
EXECUTIVE DEPARTMENT-Supervisor of Purchases A lease on behalf of the State covering property to be used by a National Guard unit must be executed by the Supervisor of Purchases.
June 16, 1948
Honorable Charlie F. Camp Colonel, AGD, Ga. NG, Asst. Adjutant General Military Department
I have your letter of June 11, in which you request my opinion as to who is the proper official to execute a lease on behalf of the State of Georgia covering property to be used by a National Guard Unit.
Georgie Code Annotated, Section 40-1902, provides as follows: "The Supervisor of Purchases shall have power and authority and it shall be his duty subject to the provisions of this Chapter: "D. To rent or lease all grounds, buildings, offices, or other spaces required by any department, institution or agency of the State Government: Provided,
219
this shall not include temporary quarters for State highway field forces or convict camps, or temporary places for storage for road materials."
Under the above authority, it is my opinion that the Supervisor of Purchases is the proper person to execute the lease in question.
EXECUTIVE DEPARTMENT-Sup.ervisor of Purchases The Supervisor of Purchases may insist that pianos (as technical instrum6llts) be purchased exclusively by his department, or may permit the State agency to assist in making such purchases.
August 10, 1948 Hon. J. L. Pilcher Supervisor of Purchases
This will acknowledge your letter of August 9th, in which you state the following:
"I would like your interpretation of the powers given the Supervisor of Purchases in the Acts of 1939 in the purchase of pianos, which have been hitherto classified by the Purchasing Department as being in that class of items covered by Section 8 of the Act of 1939, page 172....."
You further show that the regulations of the Purchasing Department provides the following:
"Bids for such articles shall be secured by the Requisitioning Department and attached to a requisition properly signed, requesting a purchase order to cover. Any special information or reason for preference must accompany any recommendation and be written in or attached to the requisition."
Your letter also states: "The point has been made that regardless of the expressed choice of professionally and technically equipped staffs of the departments, the Supervisor of Purchases has the right to disregard such choice entirely, and buy such highly technical equipment on the low bid offered. If that be true, then the selection rests on whatever professional or technical ability the personnel of the Purchasing Department may contain, or the flat choice as to price only. "Therefore, the question is, under the foregoing statement of facts: Does the Purchasing Department have the right to disregard any recommendation of departments in such cases, pianos included, and buy on its judgment, or on the price question solely?" Section 8 of the Supervisor of Purchases Act (Ga. L. 1939, p. 172, provides in part as follows: "Unless otherwise ordered by the Supervisor of Purchases, the purchase of supplies, materials and equipment through the Supervisor of Purchases shall not be mandatory in the following cases: "(a) Technical instruments and supplies and technical books and other printed matter on technical subjects; also manuscripts, maps, books, pamphlets, and periodicals for the use of the State Library or any other library in the State supported in whole or in part by State funds." Section 9 of the Act provides as follows: "That from and after the passage of this Act, to each and every invoice paid by any State agency or department, there shall be attached the delivery 1eceipt and also a copy of the purchase order issued by the Supervisor of Pur-
220
chases. And it shall be the duty of the State Auditor to disallow, as an illegal payment, any payments that do not have the recedpts and purchase orders attached to the invoice paid. It shall also be the duty of the State Auditor to point out these items in the annual audit of each agency or department of th> State.''
# It would seem that your rule 8 set forth above complies with Sections 8
and 9 of the Act herein set forth. Section 8 makes it discretionary with the Supervisor of Purchases in the matter of purchasing technical instruments. If he so desires, he may insist that such technical instruments be purchased exclusively through his department. On the other hand, he may exercise his discretion in favor of permitting the State agency to aid and assist in making such purchases. I am of the opinion that a piano is properly classified in the category of a technical instrument.
It would seem that under your rule No. 8, the State agency desiring to purchase the technical instrument could supply the Supervisor of Purchases with its reason, preference or recommendation in matters pertaining to technical supplies, and that the Supervisor of Purchases could, in the exercise of his discretion, follow such a recommendation. This procedure would not in any way prevent a full compliance with Section 9 of the Act.
FOODS AND DRUGS-Board of Pharmacy The Drug Department was placed under the State Board of Pharmacy in 1939.
August 10, 1948 Mr. Ross E. Hair
Your letter to the Commissioner of Agriculture, desiring information as to when the Drug Department was removed from the control of the Department of Agriculture, and who was Governor and also who was Commissioner of Agriculture at the time of the change, has been referred to me.
The law placing the Drug Department under the control of the Georgia State Board of Pharmacy was passed in 1939 during the administration of Governor E. D. Rivers. The Commissioner of Agriculture at that time was the Honorable Columbus Roberts. This Act, however, did not become effective until January 1, 1941, at which time the Governor was the Honorable Eugene Talmadge and the Commissioner of Agriculture was the Honorable Tom Linder.
FOODS AND DRUGS-Dairies and Dairy Products (Unofficial) Any distribution of net income under cooperative marketing must be on the basis of patronage.
March 15, 1948 Hon. W. B. Hyde, Director State Milk Control Board
I am pleased to acknowledge receipt of your letter of March 11, 1'948, in which you ask several questions relative to the State requirements for cooperative marketing associations. You ask whether or not there are any special legal
221
requirements which must be met "such as special type of charter, etc." and whether rebates can be paid to members in the form of dividends.
Cooperatives are rE:cognized by our State laws, and must conform to the requirements' provided by such statutes. Sections 65-203 to 65-207 set forth specifically the method which must be followed in order to secure a charter.
As to the distribution of excess income, we refer you to Section 65-231 which provides:
"Net income of a cooperative association organized under this Chapter in excE:ss of additions to reserves, surpluses, and other authorized deductions, may be distributed to members and to nonmember patrons on the basis of patronage. Any distribution of reserves or surpluses at any time shall be made to members at the time distribution is ordered, and other persons entitled thereto, on the basis of patronage."
Under Title 65 of the Annotated Code, together with the Pocket Part Supplement, you will find the laws of this StatE:' set forth in reference to marketing associations. After you have read these laws, I will be delighted to discuss any particular question which you may have in mind. Since this is a rather technical subject, I am sure that you will understand that I could not give you an opinion relating to "State or Federal requirements ... for tax purposes" in reference to these associations. There has been much tax litigation revolving around this issue, and I would hestitate to give an official ruling on such a question without having a specific and concrete case before me.
I am sure that you are familiar with Section 42-557 which rE:ads as follows: "This law shall not be construed to affect in any manner the relations between any cooperative marketing association, organized pursuant to the laws of Georgia or of the United States, and its members or producers selling to it: Provided, that any such association shall itself comply with the provisions herE:of as a producer with respect to milk sold to producer-distributors or distributors and as a distributor with respect to milk sold to others."
FOOD AND DRUGS--Dairies and Dairy Products (Unofficial) Lists provisions of law relating to salE: and distribution of powdered milk products.
July 15, 1948 Honorable Julian Lovett 'fropical Foods, Inc.
This will acknowledge receipt of your letter of July 8, 1948 with reference to the manufacture of malt drinks using milk powder.
The Milk Powder Law is administered by the Commissioner of Agriculture and, therefore, the question propounded in your letter with referE:nce thereto addresses itself to him.
For your information I have had copied provisions of the law pertaining to the sale and distribution of products containing powdered milk and also certain provisions of law as rE:lates to trade marks and trade names, which I am herewith enclosing, and which I hope will be of help to you.
GEORGIA CODE ANNOTATED Chapter 42-6. Milk Powder
"42-601. Permit to sell milk containing milk powder.-The sale or distri-
222
bution of milk containing powdered milk, except hereinafter provided, is hereby prohibited. All manufacturers, dealers in, or distributors of milk made out of milk powder, before selling, offering for sale, or distributing such milk in this State, shall secure a permit authorizing th.:: sale or distribution of such milk, from the Commissioner of Agriculture, who is hereby authorized to issue such permit governing the sale of such milk under the regulations promulgated by him.
"42-602. Label of package. Signs to be posted by hotels, soda fountains, etc.-Each package containing such milk shall be plainly labeled, in heavy type, "This product contains milk powder"; and if any substitute for cream shall be used in the manufacture of such milk, the label shall also indicate the percentage and origin of such substitute facts. All hotels, restaurants, lunch stands, soda fountains and all other distributors, where such milk is made, distributed, or served, shall post in not less than three conspicuous plac1t::s in their places of business a large placard, in heavy-type letters not less than six inches high, stating, in case of each distributor, "We sell milk containing milk powder," and in case of hotels, restaurants, lunchstands or soda fountains where such milk is served, the leg.::nd shall read "We serve milk containing milk powder."' It shall be the duty of the Commissioner of Agriculture to devise a fair and adequate system for checking up the manufacture and sale of such milk, and for this purpose he is authorized to have full access, during regular business hours, to all books, storerooms or places where such articles shall be manufactured or sold.
"42-603. Stamps for containers of milk powder. Enforcement of Chapter.-Every manufacturer of such milk shall, before selling or offering the same for sale, make application to the Commissioner of Agriculture for stamps which shall be issued by the Commissioner of Agriculture in suitablt::' denominations, which stamps shall be applied to each original carton or container of milk powder used by such manufacturer. The number of stamps applied to each carton or container must amount to five cents per pound on each pound of milk powder or fraction thereof. The Commissioner of Agriculture shall enforce this Chapter through inspectors of the Veterinary Bureau, and shall not employ additional help in such Bureau for such purpose."'
Chapter 106-1. Trade-Marks, Labels and Adve:rtising. "106-101. Counterfeiting or imitating.-Whenever any person, association, or union of working men has adopted, or shall hereafter adopt for their protection, any label, trade-mark, or form of advertisem*nt announcing that goods to which such label, trade-mark, and form of advertisem*nt shall be attached were manufactured by such person or by a member or members of such association or union, it shall be unlawful for any person or corporation to counterfeit or imitate such label, trade-mark, or form of advertisem*nt with intent to use the same for the purpose of deceiving the public in the sale of the goods. "106-102. (1990) Filing with Secretary of State for record; certificate of record; fee; proof of adoption of trade-mark.-Every person, association or union of working men that has adopte:d or shall hereafter adopt a label, trademark, or form of advertisem*nt may file the same for record in the office of the Secretary of State by leaving two copies, counterparts or facsimiles thereof, with the Secretary of State. Said Secretary shall deliver to such person, association, or union a duly attested certificate of the record of the same, for which he shall receive the fee of $1; such certificate of record shall, in all suits under
223
this Title, be sufficient proof of the adoption of such label, trade-mark, or form of advertisem*nt, and of the right of said person, association, or union to adopt the same. No label shall be recorded that probably would be mistaken for a label already of record.
"106-103. (1991) Remedies against using counterfeits or imitations.Every such person, association, or union may proceed by suit to enjoin the manufacture, use, display, or sale of any such counterfeits or imitations, and all courts having jurisdiction thereof shall grant injunction to restrain such manufacture, use, display, or sale, and shall award the complainant in such suits such damages resulting from such wrongful manufacture, use, display, or sale as may by said courts be deemed just and reasonable and shall require the defendant to pay such person, association, or union the profit derived from such wrongful manufacture, use, display, or sale, and such court shall also order that all counterfeits or imitations in the possession or under the control of any defendant in such case be delivered to an officer of the court or to the complainant, to bE:> destroyed.
"106-104. (1992) Suits by unincorporated associations or unions. In all cases where such associations or unions are not incorporated, suits may be commenced and prosecuted by any officer or member of such association or union on behalf of and for the use of such association or union."
"106-301. Business conducted under trade name, partnership name, etc. to be registered; exceptions.-Every person, firm or partnership, carrying on in this State any trade or business under any trade name or partnership name or other name, which does not disclose the individual ownership of the trade, business, or profession carried on under such name, shall within 30 days from the approval of this Chapter or thereafter commencing to do business, file in the office of the clerk of th~ superior court of the county in which said business is chiefly carried on, or in case of a domestic corporation, using any name other than its corporate name, in the county of its legal domicile, a registration statement, verified by affidavit, setting forth the name or names and addresses of the person, persons, firm, partnership owning and carrying on said trade or business, and stating the nature of the business being carried on and the trade, partnership, or other name used; and shall, upon any change of ownership, likewise file a new and amended statement of registration; ...."
"37-712. Fraudulent trade-marks, etc. Any attempt to encroach upon the business of a trader, or other person, by the use of similar trade-marks, names, or devices, with the intention of deceiving and misleading the public, is a fraud for which equity will grant relief."
FOOD AND DRUGS-Dairie.. and Dairy Prod,ucts Exclusive jurisdiction over all legal matters is vested in the Attorney General and the Milk Control Board may not legally employ other counsel.
October 15, 1948 Honorable S. C. Cole, Director Milk Control Board
I notice in an Atlanta Journal news story today that Mr. Wilbur Nall, Secretary of the Georgia Milk Control Board, said yesterday that he would personally appear in court Friday as an attorney representing the' Board to move to dis-
224
solve the temporary injunction obtained by Mr. R. Lee Wyatt. Obviously, Mr. Nall is not aware of the fact that our law specifically vests
exclusive jurisdiction over all legal matters in the Attorney General. No agency of the State Government is authorized to E;mploy an attorney to represent it unless such attorney is deputized by the Governor with the approval of the Attorney General. Any advances made by the Milk Board to Mr. Nall in the nature of a salary for legal advice or for the handling of litig!lltion would be illegal.
As you know, I have assigned Mr. Claude Shaw, my Special Deputy Assistant Attorney Gtneral to represent the Milk Board in all of its legal matters. You will also remember that Mr. Shaw and I discussed this case with you and Mr. Columbus Roberts in my office Wednesday, and we informed you that since the Board was undecided as to what action they desire to be taken, we would await your advice. Not having heard from you in this connection I was somewhat surprised to read in the paper that Mr. Nall would handle the case himself. This he is without authority to do.
In recent months Mr. Shaw and I have handled a number of cases for the Milk Board, and in each instance we have been successful in our defense of them. Naturally we presumed that our legal counsel and representation of the Board was satisfactory.
I am ready to proceed in this case in such manner as the Board may officially advise.
FOOD AND DRUGS-Oleomargarine There is a 10c stamp tax on Georgia sales of Oleomargarine, the proceeds of which are paid into the general funds of the State.
Dectmber 30, 1948 Hon. Nelson M. Shipp Agricultural and Industrial Development Board
I am pleased to acknowledge your letter of December 28th, in which you make inquiry as to the existing legislation in Georgia in regards to the regulation of the manufacture and sale of oleomargarine.
The following statutts found in Chapter 42-10 of the Amended Code of Georgia represent our statutory law on this subject:
"42-1001. There is hereby imposed an excise tax of 10 cents per pound on all oleomargarine sold, offered or exposed for sale, or exchanged in the State of Georgia, containing any fat and/or oil ingredient other than any of tht following facts (fats) and/or oils: Oleo from cattle, oleo stock from cattle, oleo stearine from cattle, neutral lard from hogs, peanut oil, pecan oils, corn oil, cottonseed oil, soya bean oil or milk fat."
"42-1002. Such excise tax shall be in the form of a stamp in such denominations as will best carry out the provisions of the law. Said stamps shall be properly safe-guarded as to their manufacture, preservation and distribution and shall bt in the charge of the State Department of Agriculture."
"42-1003. The State Department of Agriculture is hereby empowered to promulgate such rules and regulations as are consistent with the provisions of this Chapter.''
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"42-1004. Proceeds of sales of stamps hereunder shall be paid into the general fund of the State. There is hereby appropriated from the general fund of the State the sum of $1,000, which shall be available upon order of the State Department of Agriculture to pay the cost of printing the necessary stamps provided for in this Chapter."
I would suggest that you contact Hon. Tom Linder, Commissioner of Agriculture, in order to determine whether or not any rules or regulations have been passed by his department as provided for in Chapter 42-1003 above.
In the ease of Coy vs. Linder, Commissioner, 183 Ga. p. 583, the Supreme Court of Georgia held that the oleomargarine tax act of 1935 was not subject to any of the constitutional attacks made against it by the complainant.
FORESTRY AND GEOLOGY-Forestry Upon failure of persons responsible for forest fire,s to pay cost of suppressing same, legal action may be brought to recover the amount expended by the Department.
April 30, 1948 Hon. A. R. Shirley, Director Department of Forestry
I am pleased to acknowledge your letter of April 27th, in which you state that the Department of Forestry has several cases where services have been rendered in the suppression of forest fires, but the persons responsible for the fires refuse to pay the costs incurred in extinguishing these fires. You desire to know the procedure to be followed in requiring these people to pay the actual expenses incurred by your Department in suppressing these fires.
Section 43-125 of the Amended Code provides in part as follows: ".... Any person, firm or corporation responsible either for the starting or the existence of such fire is hereby required to control or extinguish it immediately, and if such person, firm or corporation shall refuse or neglect to do so, any organized fire suppression force may suppress the nuisance thus constituted, by controlling and extinguishing the fire, and the cost thereof may be recovered from said responsible person, firm or corporation. . . . ." The above provision of law definitely places liability for the costs of controlling and extinguishing fires on the responsible person, firm or corporation. It would seem that after proper notice had been given to the responsible party stating the amount of costs incurred in extinguishing the fire, and upon the failure of such party to pay same, it would be proper to institute legal proceedings to recover the amount actually expended by the De,partment of Forestry in suppressing the fire. I would not recommend legal proceedings until every reasonable effort had been e,xhausted to make a collection otherwise. If you have any definite evidence as to the identity of the responsible party in each of the cases mentioned in your letter, submit your files to me; and I will be glad to review the matter and proceed to recover the amount actually expended by the Department of Forestry in suppressing the fires in each case in which we feel that we have sufficient evidence on which to recover.
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FORESTRY AND GEOLOGY-Forestry (Unofficial) The tax which may be levied for fire protection of forest lands is limited only by the necessities of the case.
July 28, 1948 Honorable W. H. Miller Decatur County Clerk & Attorney
Your letter of July 21, 1948, relative to whether there is any limitation on the proposed levy in DE:catur County for fire protection for forest lands, has been referred to me for reply since Mr. Cook is out of the city.
I find that an opinion has been rendered on this question when the Honorable Ellis Arnall was Attorney General. Quoting from page 38 of the Opinions of the Attorney GenE:ral for 1939-1941:
".... 'to pay for the conservation of natural resources, and fire protection of forest lands,' authorized a tax which is unlimited except by the necessities of the case, not being incorporated in or a part of the general county purposes of current expense limitation." . . . .
Since this opinion was written prior to the Constitution of 1945, I have carefully checked and have found no provision in the new Constitution that changes or modifies the above ruling.
You understand, of course, that the Attorney General and his assistants can give only official opinions to the Governor and the various State department heads; therefore, this information is purely of a personal nature and not binding on anyone.
FORESTRY AND GEOLOGY-Mineral Righ.ts (Un.officiaJI) Quotes provisions of law with respect to leasing mineral rights on State land.
April 27, 1948
Honorable Jack M. Hall Forestry Sehool University of Georgia
Reference is made to your letter of recent date in which you request information as to mineral rights on State land.
Please be advised that the Attorney General is precluded by law from rendering official opinions upon legal matters to persons other than the Governor and the heads of the several State Departments. In view of this fact, it is therefore necessary that I advise you that any opinion expressed herein is entirely unofficial and, as such, is not binding upon any pE:rson or upon this office.
In 1945 a Mineral Leasing Commission was created which consists of the Governor, the Secretary of State, the State Geologist, and the Attorney General. (There is no longer a State Geologist, his powers and duties having bE:en transferrE:d to the Director of the Division of Mines, Mining, and Geology of the Department of Natural Resources who is now the Director of the DE:partment of Mines, Mining, and Geology of the State Division of Conservation.) I am quoting the Cod<!~ Sections pertaining to the authority of this Commission as follows:
Section 91-119, Georgia Code 1933, Annotated.
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"The Mineral Leasing Commission shall have authority to negotiate with any person, firm or corporation for contracts commonly known as petroleum oil and gas leases, and to deal with any lands or water bottoms, the legal title to which is vested by law or otherwise in the State, and in the manner and subject to the conditions hereinafter stated."
Section 91-120, Georgia Code 1933, Annotated, "The Mineral Leasing Commission shall have the authority and is empowered to grant by written contract to any person, firm, association of persons or corporation the exclusive rights to explore said lands for mineral indications, to drill and mine thereon for oil, gas, sulphur and other minerals and to produce and appropriate any and all of same therefrom; the right to use free of charge oil, gas and water from the land in conducting operations thereon and in treating to make marketable the products therefrom; the right to construct and use on said land telephone, telegraph and pipelines and facilities for the transportations and storage of minerals produced therefrom, as well as salt water; the rights to construct and use such canals and roads as are necessary for lessee's operations thereunder; the right to remove from the land at any time any property placed by lessee thereon; to grant, sell or convey to said persons, firms, association of persons or corporation, leasehold estate and all other rights usually conveyed by mineral leases and to execute in the name of the State good and sufficient leases, contracts, deeds, royalty deeds for such consideration and upon such terms and conditions as may be agreed upon between the Mineral Leasing Commission and such persons, firms, association of persons or corporation." For the procedure in applying for a lease, approval by the Commission, etc., I refer you to Code Sections 91-121 through 91-126, in0lusive. In conjunction with this, it is the duty of the Commissioner of Agriculture to gather information as to minerals. See Code Section 5-110. Also, you might not know about the rights of discoverers of phosphate deposits in navigable streams of this State. These are included in Code Sections 43-401 through 43-406, inclusive. These Sections are a little too lengthy to quote here, but you can find them readily available in the Law Library at the University of Georgia, and I am sure their librarian will be glad to help you. with anry further information you might desire on this subject.
FORESTRY AND GEOLOGY-State Parks Contracts for construction work or agreements for professional services are made in accordance with terms of the allotment of the Budget Bureau and subject to their rules as to competitive bidding.
June 14, 1948 Honorable John M. Mann, Engineer Department of State Parks State Division of Conservation
I have your letter of May 25, in which you request me to prepare a short summary of the laws under which your Department must operate in letting contracts for construction work or agreements for professional services of engineers, architects or from other professional branches as needed.
There is no statute establishing a method for the use of your Department
228
in letting such contracts. However, all such contracts must be let under the rules and regulations set u:g by the Budget Bureau, and all contracts must be let in accordance with the terms of the allotment as made by the Budget Bureau.
There is a statute which requires that when a contract is let by the State, the contractor shall give bond for the completion of the contract in accordance with its terms. This statute is codified in Georgia Code Annotated, Sections 23-1705, 23-1706, 23-1707, 23-1708, and 23-1709.
There is an additional statute which is applicable when State contracts are to be let out by bidding, which prohibits any person from preventing or attempting to prevent competition in such bidding. (Ga. Code Ann. Sec. 23-1710).
A further provision requires that any person (and the word "person'' will include corporations, partnerships, etc.), who procures public work by bidding shall before commencing to do the work, make an oath in writing that he has not violated the above mentioned Section. The Section requiring this oath is Ga. Code Ann. Sec. 23-1711, et seq.
I suggest that you consult the officials of the Budget Bureau for specific information as to their rules and regulations on the method of letting contracts by competitive bidding, and these rules and regulations are, of course, binding upon your Department.
FORESTRY AND GEOLOGY-State Parks Work covered by an additional appropriation for adding a story on a building not yet completed may be negotiated with the present contractor subject to allotment terms and regulations of Budget Bureau.
June 14, 1948 Honorable John M. Mann, Engineer Department of State Parks State Division of Conservation
I have your letter of May 24, in which you request my opinion on the following situation:
In December, 1947, your Department let a contract by competitive bidding covering the erection of a building at Veterans Blackshear Lake Memorial State Park. The original contractor's work is not complete. An additional appropriation has been made for the addition of a second story to the building. You state that it would be to the best interests of the Department to negotiate d~rec1ily with the present contractor for the accomplishment of the additional work. You request my opinion as to whether or not such direct negotiation is lega:I, or whether the contract for the additional work must be let by a new competitive bidding.
There is no statutory requirement that the contract for the additional work be let by competitive bid in such a situation, and it is therefore my opinion that you may let the additional contract by direct negotiation.
I wish to point out and to emphasize, however, that the contract must be let in accordance with the terms of the allotment as made by the Budget Bureau and in accordance with the rules and regulations of the Budget Bureau. It is my suggestion that you confer with the Budget Bureau as to these regulations, and procure their agreement before letting the contract.
22!'}
FORESTRY AND GEOLOGY-State Parks Department of State Parks may grant concessions to dock commercial vessels at boat landings at Jekyll Island State Park, and prevent unauthorized persons from using the docks.
July 14, 1948 Honorable Charlie Morgan, Director Department of State Parks State Division of Conservation
I have your letter of July 12, in which you request my opinion on the ques~ tion of whether or not the State Parks Department may protect the right granted to the Brunswick Chamber of Commerce and the Brunswick Ports Authority providing them with exclusive privilege to dock commercial vessels at the boat landings at Jekyll Island State Park.
The authority of the Department of State Parks to enter into such a contract is found in Georgia Code Annotated, Section 43-138, paragraph G, which states that the Department is empowered and directed:
"To construct and operate suitable public service privileges and conveniences in any park or other property under its control, and for the use of same may make reasonable charges; and in its discretion may grant concessions to any responsible person, firm, association or corporation for such periods, in no event longer than five years, and upon such conditions as it may deem advisable...."
I am definitely of the opinion that the grant of authority to your Department to enter into such contracts necessarily contains an implied grant of power to carry out such contracts. Since your Department may by contract grant such exclusive docking powers, it may certainly prevent the unauthorized use of such y,rivileges by other parties who are strangers to the contract. If this were not the case, your contracts would be worthless.
Should it become necessary, you are legally empowered to prevent unauthorized persons from using the docks at the Park by legal action.
Of course, neither your contract nor this opinion is intended to operate to prevent the docking of casual pleasure craft at the State Park docks.
FORESTRY AND GEOLOGY-State Parks The sale of food and merchandise within a three-mile radius of a State park is not prohibited.
October 4, 1948 Honorable Charlie Morgan, Director Department of State Parks State Division of Conservation
I have your letter of October 4, in which you request my opm10n as to whether or not there is a statute which prohibits the selling of food and merchandise within a three mile radius of a State Park.
I am pleased to advise that there is no such statute now in force in Georgia.
230
FORESTRY AND GEOLOGY-Sta,te Parks Neither the Director of the Department of Parks nor the Governor has authority to grant easem*nts across the Parks property for the construction of improvements constituting a permanent easem*nt, such power being vested in the General Assembly.
December 23, 1948
Honorable John M. Mann
Chief Engineer
State Pal;'ks Department
I wish to reply to your letter in which you asked for a ruling as to whether
legislative action is required to grant Mr. Cason Calloway an easem*nt across
part of the State Parks property in the Franklin D. Rooseve[t State Park.
(
Section 91-402 of the Code of Georgia grants general supervision over ali
property of the State to the Governor with the power to make all necessary
regulations for protection thereof when not otherwise provided.
Section 43-123-143 of the Code sets up the Division of State Parks, Historic
Sites and Monuments and defines the powers of the Director of that department.
I do not find in the last cited Code 5ections any authority for the Director
of the Department of Parks to dispose of park property or to encumber the same
by lease or easem*nt, other than to grant concessions to a responsible person,
firm or corporation and such concessions can be granted for a period of not
longer than five years. I am, therefore, of the opinion that the Director of the
Parks Department can not grant a permanent easem*nt across the parks proper-
ty of th: nature described in your letter, and shown by the attached map. This
easem*nt would be the construction of a dam across the small creek running
through land lot 25 and of a diversion ditch through a portion of said land lot.
This type of construction, if by easem*nt, would be a permanent easem*nt
running with the land, and would, therefore, be an encumbrance upon said prop-
erty. Let us, therefore, determine whether or not this easem*nt could be granted
by the Governor.
The Code Section cited above gives the Governor general supervision over
property. The Governor also has power to advertise and sell property which has
become unserviceable. This Section is not construed to authorize the general sale
of propHty. Such sale of State property must be specifically authorized by the
General Assembly. I am, therefore, of the opinion that if the Governor does not
have the authority to sell any real estate belonging to the State, he would, there-
fore, be without power to encumber such real estate by the grant of a perma-
nent easem*nt across same. I am of the opinion that a long term lease or a
permanent easem*nt across this property must be granted by the General
Assembly.
This is not to be construed to eliminate or deprive the Governor or the
Director of the Parks Department from granting a revocable permit to cross
State property by public utility corporations, as such permits do not establish a
permanent easem*nt on the, property.
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GAME AND FISH-Fines and Forfeitures (Unofficial) Where a game warden arrests a violator of the Game and Fish Law, the arrest fees go into the general funds of court.
April 27, 1948 Honorable James F. Kelly Judge, City Court of Floyd County
I have your letter of April 7 in which you request. my opinion on the following question:
"Who gets the arresting fee when a game warden or deputy game warden arrests violators of the game and fish laws? Does the sheriff?"
As you know, I am prohibited by law from rendering official opinions to anyone except the Governor and heads of the various State departments, therefore, the following remarks are entirely personal, unofficial, and not binding on anyone.
On January 20, 1944, my predecessor in office, the Honorable T. Grady Head, ruled in an unofficial opinion that the statutory provisions for dividing fines and forfeitures collected for violations of the game and fish laws apply only to monies paid as penaltie:s and do not cover legal costs. In short, costs of court, sheriff's fees, etc. are not to be divided between such officers. \and the State Game and Fish Commission.
Code Section 89-702 provides: "Any public officer who shall charge or take fees not allowed by law, or for service not performed, shall, on conviction or proof thereof, be dismissed from office." The above section would seem to obviate the possibility that the sheriff might receive the arresting fee in cases wherein game wardens had made the arrest. It is therefore my opinion that arresting fees, if levied in such cases as you have set out in your query, would go into the general funds of the court and thereby the county.
GAME AND FISH-Fishing (Unofficial) The sale of fresh-water fish imported from Florida is illegal.
May 6, 1948 Mr. John T. Ferguson Attorney and Tax Consultant
I am pleased to acknowledge your lette:r of April 29, 1948 in which you requested my opinion on the following question: Is it permissible to sell fresh water fish in Georgia which have been imported from Florida:
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the: Governor and the heads of the various state departments; therefore, this information is to be considered strictly of a personal nature and is not binding on anyone.
For your information, I am enclosing a copy of the fishing regulations of Georgia, and also a copy of Rule 14.01, which is a section of the fishing regulations of the State of Florida.
Since the regulations of Florida and Georgia, both prohibit lha selling of frt>sh water fish, it appears to me that your client's contemplated activities W011ld be illegal.
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GAME AND FISH-Fis.hing: (Unofficial) Criminal prosecution against persons selling fresh-water fish under a license can not be maintained.
June 8, 1948 Hon. Joseph T. Grice Attorney at Law
In Re : Strickland vs. Game and Fish Commission In accordance with my telephone conversation of last week, I have advised the Game and Fish Commission to withdraw prosecution in the several cases pending in the City Court of Reidsville against persons for selling fresh water fish when such persons are in possession of a license which expressly giVE;S them the right to engage in such an undertaking. As I related to you this morning over the phone, Mr. Elliott has advised me that these criminal cases will be withdrawn. I have advistd Mr. Elliott against making cases similar to the one now being withdrawn. We will not make criminal cases against persons for selling fresh water fish who have a license authorizing them to do so. The wardens of the Game and Fish Commission have been advised to this effect, and you may rest assured there will be no further pros6cutions as outlined above for the rest of this year. I understand from you that the above case has been postponed, and that you will advise me whether or not the same is dismissed-or, if it isito be tried, you will give me ample notice to prepare our case. In view of our action in dismissing the criminal cases, and with the further assurance which we are giving you in this letter, I am of the opinion that the above case should be dismissed. The Game and Fish Commission will pay the costs of this proceeding if you will instruct the Clerk of Court to send the bill of costs to thtm. I will appreciate hearing from you further in this matter.
GAME AND FISH-Hunting (Unofficial) Coons, oppossums and foxes may be hunted at night.
October 15, 1948 Honorable James M. Elders
This will acknowledge receipt of your letttr of October 11th in which you request that the section of law be cited to you which deals witW the hunting of coons, oppossums and foxes at night.
There are sections of the Code dealing with licenses, seasons, etc. for the hunting of the animals you name, but a search of the Code does not reveal any statute prohibiting hunting coons, oppossums and foxes at night. Of course, there is a duty impostd by law to observe the legal regulations as to licenses, seasons, trespassing, etc.
As you know, the Attorney General is prohibited by law from rendering any official opinion to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State; however, it is a pleasure for me to give you this reply as a matter of information.
233
GENERAL ASSEMBLY-Primaries (Unofficial)
Primaries to select State Senators shall be held in the county whose turn
it is to furnish the candidate.
March 2, 1948
Mr. Mose Gordon
This will acknowledge rece1pt of your letter of February 27, 1948, in which you request infonnation as to the election of a member of the State Senate.
Under the law I am prohibited from giving official opinions to anyone except the Governor and the h:ads of the various State Departments, and then only upon matters in which the State is involved. However, I am pleased to be of any service I can to you in the matter and anything that I may say is to be considered unofficial and purely as infonnation.
The following Code Sections of the Pocket Supplement of the 1933 Annotated Gode of Georgia are pertinent to the problem confronting you.
"34-3219. State Senate nominations; holding primary in county whose turn it is to furnish nominee.-Every political primary eledtion held by any political party, organization or association for the purpose of selecting candidates for the office of State Senator from any of the senatorial districts of this State, as provided for by the Constitution, shall be held only in the county whose turn it is to furnish the nominee of such party as a candidate for the office under the rotation system as same was of force prior to January, 1936. (Acts 1939, p. 311.)"
"34-3220. Same; primary nominee as sole district nomi,nee.-The candidate entitled to said nomination as the result of the primary under the rules and regulations prescribed by the executive committee or other party organization of the county whose turn it is to furnish such nominee under such ro.tation system shall be the nominee of such party for State Senator from any such district for the ensuing term and no other person shall qualify or have his name placed upon the ballot as the nominee of such party for said office. (Acts 1939, p. 311.)''
"34-3221. Same; rotation system of nominations departed from only with consent of executive com1mittee.-Unless the :Xecutive committee or other party organization of the county whose turn it is to furnish such nominee s~all, by resolution, disclaim the right of thE: members of such party in such countY! to furnish such nominee, no county or the members of any such party in any such county shall furnish such party nominee for the office of State Senator a~ two successive elections for State Senator in said district, or after having furnished such nominee, again do so until every county in such district has furnished the nominee of such party in its turn: Provided, that notwithstanding any qthell' provision of this law in E:Very senatorial district composed of counties having equal representation in the House of Representatives that no such county shall furnish the nominee for State Senator in said district at two successive elections unless the same is consented to by the executive committees of each of 'the counties in said district. (Acts 1'939, p. 311.)"
"34-3222. Same; county from which nominee ahala come at next general election.-For the next general election thereafter held for State Senator in the various senatorial districts of this State, the nominee of any political party,
234
organization or association as a candidate for such office shall come from the county whose turn it is to furnish such nominee under the rotation system as recognized and in force in such senatorial district, prior to January 1, 1936. (Acts 1939, pp. 311, 312.)"
GENERAL ASSEMBLY-Members A former officer of th& U. S. Naval Reserve, retired with pay by reason of disability received in service, is eligible as a member of the General Assembly.
March 5, 1948
Mr. Fred A. Birchmore Attorney at Law
Thank you for your letter of February 14 concerning your request for my opinion on the question of whether or not a retired officer of the United States Naval Reserve rec&iving retirement pay, is barred by Code Section 2-1606 from having a seat in the General Assembly.
I have given this question considerable study and I have had some correspondence with the legal officer of the Sixth Naval District. After considering the matter thoroughly, it is my opinion that the Section in question does not bar officers retired for disability received in the service from holding office as members of the General Assembly.
The Section in question reads, in part, as follows: "No person holding a military commission, or other appointment, or office, having any emolument, or compensation annexed thereto, under this State, or the United States, or either of them except Justices of the Peace and officers of th militia, nor any defaulter for public money, or for any legal taxes required of him shall have a seat in either house; ...." The gist of the above quoted Section was a part of the Georgia Constitution of 1777, and it has in substance been re-enacted in each of the successive Constitutions of our State. It is, of course, difficult at this time to look back to the days of the Revolution and determine with any degree of accuracy what the int&ntion of the framers of our first Constitution was, but it is my opinion, his"' torically as well as legally speaking, that the evil which the framers sought to avoid was the presence in the General Assembly of military officers on active duty. I do not think I do the military any injustice when I state that it would be somewhat difficult in this or any other day for an officer actively engaged ~n military affairs to give full articulation to the wishes of the electorate of a Georgia community in certain easily foreseeable situations. To obviate such a possibility, it is my opinion that the fram&rs of our State Constitutions have preserved the prohibition herein discussed, and I consider it a just and necessary rule. However, I think it would be most unjust and unwarranted for our Constitution or any other rule of law to take away the right to hold public office in any form from the brave and honored men who have suffered injury in the militar1 services. On the contrary, it is my opinion that it is the overwh&lming w~sh of our people, and a well defined rule of public policy, that war veterans should be given every opportunity to run for, be elected, and hold public' officE>.
235
It is a well settled rule of statutory construction in Georgia that '"words limiting the right of a person to hold office are to be given a libera:l construc!tien in favor of those seeking to hold office, in order that the public may have the benefit of a choic from all of those who are in fact and in law qualified." (Thornton v. McElroy, 193 Ga. 859, 861)
See also: Gazan' v. Heery, 183 Ga. 30, and Weems v. Glenn, 199 Ga. 388. Eligibility to hold office is a general rule and ineligibility is the exception. The right to hold office is a political privilege and to remove such a right from any group of our citizens would be an extreme measure. To remove the right from that group of all groups most revered and honored, the retired veterans of our wars, certainly does not seem to me to be in keeping with the policy of the law of our State. It is therefore my opinion that the liberal rule of construction stated by our Supreme Court should be applied to the Section in question, and that thd words "holding a military commission" should be restricted in their application to include only those officers on active duty with the armed forces. Now there are numerous decisions which indicate that retired officers are still in the military service. See: U. S. v. Tyler, 105 U. S. 244, 26 L. Ed. 895; White v. Treibly, 19 Fed. 2d 712; Franklin v. U. S., 29 Ct. Cis. 6. I do not question the logic or the rulings of these opinions. Indeed, I think
it is clear that retired reserve officers are still in the military service. I base mw
opinion on a broad interpretation of the intention of the framers of our State Constitution, and I do not hesitate' to state that it is a broad interpretation.
I have not reached my conclusion without considerable reflection, nor do I contend that my view of the question is the only possible one. On the contrary, I state quite frankly that I consider the question to be an extremely close one, but all things considered, I feel my view to be correct.
As you know, I am prohibited by law from rendering official opinions to anyone except the Governor and heads of the various State departments, therefore, the above remarks are entirely personal, unofficial, and not binding on anyone.
GENERAL ASSEMBLY-Members A person holding another office may not have a seat in the General Assembly but no prohibition exists as to his election to the General Assembly while holding such office.
July 14, 1948 Hon. Wayne Hinson, Acting Director Department of Public Safety Confederate Soldiers Home
I am pleased to acknowledge your letter of July 14th, in which you request information relating to the question of whether you would be eligible to1 serve as a member of the General Assembly provided you were elected in the coming election, subject to your resignation from the position of Acting Director of the Department of Public Safety prior to the convening of the legislative session.
Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the opera-
236
tion of the State government. I am therefore precluded by law from giving you an official opinion on the question propounded. However, I am always glad{ to give any information or assistance that I can to public officials and citizens alike on matters of interest to them.
Section 2-1606 of the State Constitution provides as follows: "No person holding a military commission, or other appointment, or office, having any emolument, or compensation annexed thereto, under this State, or the United Staates, or either of them except Justices of the Peace and officers of the militia, nor any defaulter for public money, or for any legal taxes required of him shall have a seat in either house; nor shall any Senator, or Representative, after his qualification as such, be elected by the General Assembly, or appointed by the Governor, either with or without the advice and consent of the Senate, to any office or appointment having any emolument annexed thereto, during the time for which he shall have been elected, unless he shall first resign his seat, provided, however, that during the term for which he was elected no Senator or Representative shall be appointed to any civil office which has been created during such term.'' Section 2-1901 of the State Constitution provides: "Each House shall be the judge of the election, returns, and qualifications of its members and shall have power to punish them for disorderly behavior, or misconduct, by censure, fine, imprisonment, or expulsion; but no member shall be expelled, except by a vote of two-thirds of the House to which he belongs.'' I believe that the above provisions of the Constitution will give you the desired information. In the final analysis the qualifications of members of each House shall be determined by that particular branch of the General Assembly as set forth in Section 2-1901 above.
GENERAL ASSEMBLY-Members (Unofficial) A member of the General 'Assembly may be appointed as Director of the State Hospital Authority.
December 15, 1948
Honorable John C. Lewis R,epresentative, Hanco*ck County
This acknowledges receipt of your letter of December 2nd, 1948, in which you inquire as to whether a duly elected Representative in the General Assembly can be appointed as Director of the State Hospital Authority.
The General Assembly, at the 1939 Session, (see Acts 1939, pp. 144-159), created the State Hospital Authority as a separate and distinct entity from the State Government. The 1941 Session of the General Assembly amended this Act, (see Acts 1941, pp. 250-253). The only material change made in the amendment was Section 1 in which the Authority should consist of the Governor of Georgia, the _state Auditor, and the Attorney General.
I think the ruling of the Supreme Court of Georgia in the case of The State of Georgia vs. The Regents of the University System of Georgia e't al, 179 Ga. 210, is controlling on the question involved.
As this is not an appointment by the Governor but is an appointment by the State Hospital Authority, of which the Governor is a member, I do not think. that Code Section 2-1507 would apply.
237
Under the Cons':itution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. Therefore, the- views expressed in this letter are my own personal opinions and are not to be considered as binding upon anyone. However, it is a pleasure for me to refer you to the provisions of law applicable to your question as a matter of information.
GEORGIA BUREAU OF INVESTIGATION-Credentials Suggested form for credential folder.
November 10, 1948
Lt. J. L. Dixon
Assistant Director
Georgia Bureau of Investigation
I have been directed by the Attorney General to prepare a suggested form
for your credentials folder, pursuant to your request in your letter of October
25, 1948.
.
I suggest that you use the wording set-out below, which covers in a broad
:sense the authority and duties of an agent of the Bureau of Investig;ation, on
the lower half of your proposed folder:
And as such agent is empowered as follows:
1. Upon request of municipal governing authorities, sheriffs, or Superior
Court Judges, to render such assistance as requested appertaining to any crimi-
nal case;
2. To make scientific investigation of articles used in committing crimes,
<>r articles, fingerprints, or blood stains found at the scenes of crimes;
3. To take fingerprints, photographs, and measurements of persons, in
-cooperation with other States and of U. S.;
4. To execute any act and duty, including arrests, which a member of the
Uniform Division of the Department of Public Safety is authorized to perform;
5. To exercise generally any power and authority that is or may be granted
to an agent of the Georgia Bureau of Investigation under the laws of Georgia,
and the rules and regulations of the Department of Public Safety.
IN WITNESS WHEREOF, I have- hereunto set my hand and seal this
------------ day of -------------------------------------------- 19 _______ _ STATE OF GEORGIA
Department of Public Safety
Director, Georgia Bureau of Investigation
238
GREAT SEAL--Use as Decoration on Book The use of the Great Seal other than by order of the Governor or General Assembly is prohibited.
August 11, 1948 Hon. Albert B. Saye Associate Professor of Political Science The University of Georgia
I am pleased to acknowledge your letter of August 9th, in which you ask whether or not there is any legal objection to using a copy of the seal of the State of Georgia as a decoration on the cover of a book.
While I am not permitted to render an official opinion to individuals, I am nevertheless glad to refer you to Paragraph I, Section 3, of Article 5 !of the State Constitution which provides as follows:
"The great seal of the State shall be deposited in the office of the Secretary of State and shall not be affixed to any instrument of writing except by
order of the Governor or General Assembly, and that now in use shall lbEl! the1
great seal of the State until otherwise provided by law." I also call your attention to Code S~ction 26-3915 which provides as follows: "Any person who shall falsely and fraudulently forge or counterfeit or be
concerned in forging and counterfeiting the great seal of this State, or any other seal authorized by law, or shall falsely and fraudently cause or procure the same to be forged and counterfeited, or shall falsely, fraudulently, and knowingly impress, or cause to be impressed, any instrument wit~ such forged and counterfeited seal, or shall falsely, fraudulently, and knowingly affix it or cause it to be affixed to any instrument, or shall falsely and fraudulently utter or pubEsh any instrument impressed with it, knowing it to be forged and counterfeit, shall be punished by imprisonment and labor in the penitentiary for not less than two nor more than 10 years."
As Tated above, this letter is not an official opinion but is simlp,ly being sent as a matter of information. I trust that the provisions of law set forth herein will adequately answer your inquiry.
HUSBAND AND WIFE-Marriageable Age (Unofficial) The marriageable age in Georgia is 17 for males and 14 for females.
December 15, 1948 Honorable T. H. Edwards, Jr. Superintendent, Pembroke Public School
This acknowledges receipt of your letter of December 10, 1948, in which you request information as to the legal age of a girl or boy to be married under the State Law:
Section 53-102, 1933 Georgia Code Annotated, reads as follows: "To be able to contract marriage, a person must be of sound mind; if 91 male, at least 17 years of age, and if a female, at least 14 years, and laboring under none of the following disabilities, viz: "1. Previous marriag& undissolved. "2. Nearness of relationship by blood or marriage, as hereinafter explained."
239
Section 53-204 of the 1933 Georgia Code Annotated reads as follows: "In cases where the parties applying for a license shall not have reached the age of 21 years, their ages to be proved to the ordinary as hereinafter provided, the ordinary immediately upon receiving the application, shall post in his office a notice giving the names .and residences of the parties applying therefor and the date of the application; except that where the parents or guardian of the female appear in person before the ordinary and consent in 'Writing to the issuance of the license, the posting may be dispensed with." Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. However, it is a pleasure for me to refer you to the provisions of law applicable to your question as a matter of information.
HUSBAND AND WIFE-Marriage Recording Statutes A marriage license is returned by the person performing the ceremony to the ordinary, who first records and then forwards it to the State Board of Health to be retained. No registration fee is payable to the Ordinary.
March 16, 1948 Honorable Lon Sullivan, Director Georgia CitizE:ns Council
I regret the delay in replying to your inquiry of February 17th, with reference to the status of Georgia's marriage recording statutes, but it has been impossible to complete the research sooner. The pertinent statutes are as follows.
By an act of 1924 (Georgia Laws 1924, p. 53), codified as Section 53-201, it was provided, among other things, that the person performing the ceremony is required to "return the said license to the ordinary, with his certificate thereon as to the fact and date of the marriage, within 30 days after the, date of sktid marriage, which license, with the return thereon, shall be recorded by the ordinary in a book kept by him for this purpose.''
In 1927 (Georgia Laws 1927, p. 272, et seq.) the Legislature enacted ;t statute providing for the registration of individuals as to race, with the State Board of Health. It provided for local registrars, recording with the Bureau of Vital Statistics, and that applications for marriage licenses should be forwarded to the State Board of Health and the license withheld until the Board of Health forwarded to the Ord'nary a report on whether or not the individuals are registered, and their race and color, although the license could be issued if the ordinary had no evidence or knowledge that ~he marriage would be illegal even though applicants were riot registered with the Board. In connection with this provision, the Act provided that "When a rn!arriage license shall be issued by the ord'nary, it shall be returned :o the ordinary by the officer or minister solemnizing the marriage and forwarded by the ordinary to the State Board of Health, to be permanently retained by said Board." (Section 53-311, Georgia Code).
There has never been any attempt to enforce the registration by race provisions of this Act.
By an Act of 1945, (Georgia Laws, 1945, pages 236, et seq.), a new vital statistics law was enacted, provided in Sections 34, 35, 36, and 37, codified as Sections 88-1134- 88-1137, inclusive, that each official authorized by law to
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issue marriage licenses and file marriage certificates must forward to the Department of Public Health a certificate concerning such marriage; that such official should collect, in addition to other fees prescribed by law, a marriage registration fee of $1'.00, of which the official should retain $.50; and the same provisions concerning recording of divorces and annulments by the Clerk of the Court, and the forwarding of certificates and collection of a similar registration fee.
The 1947 Act to which you refer purported to repeal all four sections set out above (Georgia Laws, 1947, p. 916). However, the caption of the Act specifically states the purpose of the Act is to repeal sections 36' and 37 of the 1945 Act relating to Registration of Divorces and Annulments, etc., and Divorce and Annulment Registration Fee. The Act itself first repeals those two sections, and then repeals Sections 34 and 35, pertaining to Registration of Marriages, and Marriage Registration Fee. Since the two divorce sections are specifically set out in the caption, I do not believe repeal of the sections relating to marriage would be sustained, should the question ever arise in Court, since the Act contains matters not set out in the caption. The usual "and for other purposes" in the caption probably would not cover the situation, since the divorce sections are specifically mentioned.
The Bureau of Vital Statistics advises that it has never had much cooperation in the keeping of these records, and when the 1947 Act was passed, it was in process of working out a form which would have probably resulted in more cooperation. However, upon passage of the Act, the Ordinaries and Clerks were notified that the records on marriages and divorces would no longer be kept by the ,Bureau. It would seem, therefore, unless and until the repealing act is declared invalid, that the $1.00 registration fee about which you ask can no longer be collected at all.
The 1927 Act hereinbefore referred to, while providing for the forwarding of the marriage license to the Board of Health, does not provide for the collection of any fee for this service. However, as stated, this chapter has never been put into effect, and the Health Department advises that the provision in 53-311 that marriage licenses be retained as permanent records by the Department, has never been enforced.
Although the 1927 Act has not been made effec:ive, it is apparently considered alive by the Courts. In the case of P,ritchett vs. Ellis, 41 S.E. 2d 402, the Supreme Court held that a suit to cancel a marriage record could not be maintained if it did not join as party defendant the ordinary or the State Board of Health. In Guess v~. Guess, 43 S.E. 2d, 326, the recording statutes were not directly ruled upon (that case merely holding that a collateral attack could not be made upon the record of a marriage), in the body of the opinion Justice Head said:
"When a marriage license is returned to the ordinary issuing it by the person performing the marriage ceremony, together with his certificate thereon as to the fact of such marriage, it is the duty of the ordinary to record the license and certificate in a book kept by him for his purpose. Code, Sec. 53-201. After such license, with the certificate thereon, has been duly recorded, it shall be forwarded by the ordinary to the State Board of Health, to be permanently retained by that Board. Stc. 53-311."
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This latter case was decided in May, 1947, after passage of the Act repealing requirements as to registration of marriages and divorces.
Apparently, the law stands now, as stated by Justice Head, although as a matter of fact 53-311 has never been enforced and the only permanent marriage records in Georgia are kept by the respective Ordinaries.
HUSBAND AND WIFE-Miscegenation (Unofficial) A member of the Caucasian race may not marry a Chinese.
March 17, 1948 Major G. R. McLaughlin OSD-Army Advisory Group
I regret the delay in supplying the information regarding validity of marriages between Americans and Orientals. The press of work and shortage of help has made an earlier reply impossible.
Georgia law, as you know, prohibits miscegenation, the language in Section 53-106, Georgia Code of 1933, being
"It shall be unlawful for a white person to marry anyone except a white person. Any marriage in violation of this section shall be void."
A consideration of the penal and licensing statutes indicate the original intention was to prevent marriages between white persons and negroes. In fact, one of the earlier statutes, enacted in 1866, defines persons of color as persons having "one-eighth negro, or African blood in their veins."
However, this definition has been altered, and the Act, as amended in 1927 (Georgia Laws 1937, page 272), is now codified as Section 79-103, Georgia Code of 1933, and reads as follows:
"All Negroes, mulattoes, mestizos, and their descendants, having any ascertainable trace of either Negro or African, West Indian, or Asiatic Indian blood in their veins, and all descendants of any person having either Negro or African, West Indian, or Asiatic Indian blood in his or her veins, shall be known in this State as persons of color."
A white person is defined by Section 53-312, Georgia Code of 1933, as follows:
"The term 'white person' shall include only persons of the white or Caucasian race, who have no ascertainable trace of either N E:gro, African, West Indian, Asiatic Indian, Mongolian, Japanese, or Chinese blood in their veins. No person, any one of whose ancestors has been duly registE:red with the State Bureau of Vital Statistics as a colored per~"on or person of color, shall be deemed to be a white person."
The quoted section is a portion of a statute enacted in 1927, requiring registration of individuals as to race. The Act required local rE:gistrars to cause each person in his jurisdiction to execute a form to be prepared by the State Board of Health "whereon shall be given the racial composition of such individual, as Caucasian, Negro, Mongolian, West Indian, Asiatic Indian, Malay, or any mixture thereof, or any othE:r non-Caucasian strains. . . ." and provided, except in certain instances, for investigation of such registration records before issuance of a marriage license.
No attempt has ever been made, and no appropriation provided for the purpose, to carry out the provisions of this registration act. I find no cases where
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the definition of a white person, as given above, has been tested by our courts.
Since no r~::gistration statute as to race has been enforced, naturally no person
could be registered as a person of color with the Bureau of Vital Statistics. I am
told that it is impossible, in the present state of our knowledge, to identify the
race of any person by an examination of the blood, and it therefore seems a phy-
sical impossibility to classify, literally, persons with an "ascertainable trace" of
of the specified bloods.
However, so long as this law remains on our books, it appears to forbid
intermarriage of a white person and a Chinese. Your inquiry refers to an "Ori-
ental (Chinese national)" and it is possible an Oriental would not come within
the forbidden bloods. As a matter of fact, I am informed there is a thriving
Chinese-American colony here in Atlanta, and none of the mixed marriages have
ever been questioned. Whether or not the Courts would hold valid the act con-
taining the above prohibitions, I could not say. No such marriage has ever been
ruled upon by our Georgia courts.
I regret that I cannot answer your question definit~::ly. Prior to the Act of
1927 requiring the registration as outlined above, there would have been no
doubt that such a marriage was valid, providing the Chinesse National had no
Negro, African, West Indian or Asiatic Indian ancestry. Our racial definitive
statutes seem to have confused race with nationality. For instance, a West Indian
could be a white person, with no trace of any other blood; yet it would seem
under our definition of a person of color, he could not intermarry with a Georgia
white person.
It is quite possible that if the Courts ever considered the question, the arbi-
trary and confused definition of a "white person" as set out in Section 53-312
quoted above, would b~:: held invalid, but in face of the fact that the law is still
on our statute books, it appears that intermarriage of a white person and a
Chinese is unlawful.
The Attorney General is prohibited from giving his official opinion to pri-
vate individuals. This letter should therefore be regarded as unofficial, with no
binding effect upon any person or department of the State, and its contents are
matters of general information only.
.
INDUSTRIAL RELATIONS-Compensation on Discharge A monthly salaried employee is not entitled to notice or compensation when discharged.
April 30, 1948 Mr. Jack Kennedy Morten Milling Company, Southeastern Sales Office
This will acknowledge your lettE:r of April 20th in which you ask if a monthly-salaried employee in Georgia is entitled to two weeks notice, or compensation, when discharged.
Please be advised that the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the heads of the various State Departments; therefore, all information given herein is to be considered strictly personal, unofficial and not binding on any one.
There does not appear to be any law in Georgia which would compel an
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employer to give a monthly-salaried employee in Georgia two weeks notice, or compensation, when discharged.
However, the 1933 Ga. Code, Annotated, Section 66-101 provides: "Term of employment.-That wages are payable at a stipulated period raises the presumption that the hiring is for such a period; but if anything in the contract shall show that the hiring was for a longer term, the mere reservation of wages for a lesser time will not control. An indefinite hiring may be terminated at will by either party." From the above quoted section it appears that the length of employment, wages therefor and the termination of employment depends entirely upon the contract between the parties. It was held by the Supreme Court of Georgia in Lambert v. Georgia Power Company, et. al., 181 Ga. 624 (1) that, "An employee under a contract of hiring, indefinite in its duration, may lawfully be discharged at the will of his employer. A discharge under such circ*mstances affords no cause of action for breach of contract." And again in Wol,b v. Pullman Company, 57 Ga. App. 772 at page 775, the Court held, "A servant employed without a mutual agreement as to the duration of the term of service may be discharged at the will of the employer." However, the Court stated further in the case of Webb v. Pullman Company, supra, that where a special provision in the contract was made relating to any reduction of force by the employer, under which any employee who was laid off for that reason mus; be given five days notice, that "A person who accepts employment on that condition and continues to work up to the time when he is laid off and offers to continue at work has done all that the contract requires of him and has earned the right to have the five days notice. In such a case the contract for the notice is not wanting in mutuality and is not without consideration. A nudum pactum becomes binding when one party performs his part and the other party gets the benefit of such performance." Therefore, from the above it appears that the Georgia Law does not provide for any specific length of time or compensation when an employee is discharged. F'rom the quoted Code Section and the cases cited, the length of notice or compensation when discharged would depend entirely upon the agreement or contract between the employer and employee.
INDUSTRIAL RELATIONS-Labor Legislation The Attorney General may not give opinion as to the constitutionality of labor legislation which has no relationship to the State government.
March 11, 1948 Honorable M. E. Thompson Governor of Georgia
I am pleased to acknowledge receipt of your letter of March 8, 1948, in which you request an official opinion as to the constitutionality of Acts No. 140 and No. 141, appearing in Georgia Laws 1947, at Pages 616-621.
The acts referred to in your request are commonly referred to as "labor or anti-labor" legislation. The subject matter of Act No. 140 is "Membership in labor organizations-Fees-Requirements, Contracts, Illegal Acts, and Injunc-
244
tions". The subject matter of Act No. 141 is "Interference with Employment or Work, Mass Picketing-Unlawful Acts".
It is obvious to me, after an exhaustive study of these two acts, that they are applicable wholly and exclusively to relationships between management and labor. It is likewise obvious that neither act bears any relationship to the State Government nor provides for the enforcement of any of its provisions by the Governor. Ample provisions are made for the enforcement of the various provisions on the part of all parties of interest through the courts of our State, in both civil and criminal action, as in private litigation.
Under Code Section 40-1602, "It is the duty of the Attorney General, when required so to do by the Governor, to give his opinion in writing or otherwise on any question of law connected with th~ interests of the State or with the duties of any of the departments". It is clear from this Code Sec'Jon that the Attorney General is without authority to rule upon the constitutionality of any State statute which does not affect the State or the various departments of the State Government. This construction of the foregoing Code Section is consistent with the unbroken policy of my predecessors in office in considering the constitutionality of State statutes. Moreover, the same policy has been followed without exception by the Attorney General of the United States, in considering the constitutionality of Federal statutes.
Should I vary from the unbroken policy instituted and followed by my predecessors in office in passing upon the constitutionality of statutes not directly affecting the State Government, I would be setting myself up as a superjudicial officer, relegating unto myself the prerogative of passing upon the constitutional rights of and prohibitions against the acts of every private individual within the bounds of the State of Georgia. Moreover, ther~:o is no provision of law which affords me the authority to defend my rulings or my conclusions of law on the constitutionality of a statute which does not deal directly with the State Government, should they be attacked in the courts of this state. It is to be noted h~:ore that I, with the assistance of my staff, defended-and, incidentally, successfully-every major official opinion rendered by me involving statutes dealing with the State and its various departments which were questioned in the courts of 1947. It would be futile for the State Law Department to r~:onder opinions on the constitutionality of statutes without authority to defend them should they become involved in litigation.
In addition to the rule or custom of the State Law Department in refu,sing to rule on the constitutionality of the acts of the G~:oneral Assembly not ,related directly to the State Government and its various departments, it must be remembered that the Constitution itself provides that only the judiciary can officially declare a solemn act of the Legislature void and unconstitutional. See Article 1, Section 4, Paragraph 1 (Section 2-402 of the Pocket Part Suppl~:oment to the Code).
Passing upon the constitutionality of solemn acts of the Legislature is indeed so grave a matter that the Constitution of our State places final appellate determination of such matters ~:oxclusively in the Supreme Court itself, the Court of Appeals being deprived of such jurisdiction. Moreover, before courts of original jurisdiction can consider the constitutionality of state statutes, there must exist a justifiable issue as a basis for such litigation. In regard to the question raised in your inquiry as to the constitutionality of Acts No. 140 and No. 141 of
245
the General Assembly of 1947, there is no such issue presented to you. Should I render an opinion on the constitutionality of these acts, neither you nor' I are authorized to defend such opinion as I might render.
Here, may I emphasize that there is a broad distinction between an adjudication of the Supreme Court on the constitutionality of a statute and the rendering of an off'cial opinion by me, as Attorney General, on the constitutionality of a statute, directly affecting the State Government. It must not be presum,ed that you are precluded from making such requests, when the State is involved, since the law provides that upon your request I shall advise you on all such matters relating to the State.
In this connection, may I refer you to my letter dated December 16, 1'947, in which I declined to rule on the constitutionality of the so-called County and Municipal Home Rule statutes, as enacted at the 1947 session of the General Assembly. In that letter, I gave fewer but similar reasons for so declining.
In view of the limitations placed upon me in rendering official opinions as set out in Code Section 40-1602, the unbroken custom and policy established by my predecessors in office, and the reasons herein given, I am compelled to decline to give you my official opinion on the constitutionality of these acts.
INDUSTRIAL RELATIONS-Labor Unions (Unofficial) Laws relating to labor unions are contained i'n the Acts of the Genera~ Assembly of 1947, pages 616'-621.
April 5, 1948 Mr. Carlton Crutchfield
Acknowledging receipt of your letter of April 2, 1948, in which you request information in regard to the law as to labor unions, etc.
Replying thereto I beg to advise that the Attorney General of Georgia is not authorized under the law to render official opinions upon any matters except when directed by the Governor and the heads of the several State Departments, therefore, the information given herein is strictly personal and unofficial.
You will find the laws respecting labor unions passed at the General Assembly of 1947, in the Acts of the General Assembly of 1947, on pages 616, 617, 618 and 61'9 and also on pages 620 and 621.
It appears from your letter that the matter in which you request information is a personal matter and the Attorney General can not give any opinion whatever in regard thereto. I would suggest that you confer with your attorney in Decatur and obtain his opinion in the matter.
INSURANCE-Bond Revenue anticipation certificates, the payment of principal of and interest upon which is dependent upon revenue from the particular facilities, are not such bonds as are designated to be deposited with the State by insurance companies.
January 13, 1948
Hon. Zack D. Cravey Insurance Commissioner
I am pleased to acknowledge receipt of your recent request for an opinion as to whether water and sewer revenue anticipation certificates of 1947 issued
246
by the City of Savannah and purchased by Piedmont Life Insurance Company may be deposited with the State as securitie:s under the insurance laws.
Section 56-320 of the Code of Georgia provides in part as follows: "All deposits of bonds, collateral, or assets required under the law of any life, accident, or casualty insurance company incorporated under ~he laws of this State as a condition to its be:ing authorized to do business, may be made in bonds of the United States, bonds of this State which according to the Acts and ~esd lutions of the General Assembly are valid, or bonds of any county or municipality in this State which have been validated under the laws of this State ... " The Act of 1947 authorizing the issuance of revenue anticipation certificates by the City of Savannah provides that the payment of principal and interest shall comE> only from revenue produced by the particular revenue producing facilities involved. Section 2-6005 of the Constitution likewise provides that such revenue anticipation obligations shall be payable only from revenue produced by the particular facility involved, and "no such issuing political subdivisions of the State shall exercise: the power of taxation for the purpose of paying the principal or interest of any such revenue anticipation obligations or any part thereof." It seems clear from the above provisions of law that the revenue anticipation certificates under discussion should not be classified as municipal bonds since they are not obligations of the municipality. This would mean that such revenue ce:rtificates would not be proper securities to be deposited by a life insurance company in order to qualify to do business in this State. Section 56-317 of the Code provides in part as follows: "Domestic life and accident insurance companies-All such companies chartered by this State shall, before doing business, deposit with thE> Treasurer of this State $100,000 in such securities as may be deemed by the Insuo'rance Commissioner equivalent to cash, to be subject to his order, as a guaranty fund for the security of the policy holders of the company making such deposit. . . ." While the: above statute does place some discretion in you as Insurance Commissioner, it would seem that such discretion should be exercised in extreme caution when there is no statutory law authorizing revenue certificates to be accepted as certificates by the State. The law is specific in reference to the acceptance of insured shares of building and loan associations. Se:ction 16-438 of the Code in this connection provides:
"Such insured shares referred to in Section 16-437 shall be deemed to bEi securities equivalent to cash, and the Treasurer of this State shall accept as a deposit either in whole or in part such insure:d shares froml any insurance company required by law to make deposits of any kind or character with the Treasurer of this State."
While the above statute authorizes building and loan shares to be accepted as the equivalent of cash, we have no such statutory approval in reference to revenue anticipation certificates. The silence of the Legislature in reference to revenue anticipation certificates would indicate that such we:re not to be accepted as the equivalent of cash.
While it is entirely reasonable to assume that some reve:nue certificates would be equivalent to cash, you will readily agree that it is likewise possible that other such certificates might be worthless, depe:nding upon the amount of revenue derived from the particular facility involved. This would indeed impose
247
an undue burden on you as Insurance Commissioner to determine at your own peril which projects were likely to succeed, thereby causing these certificates to be E:quivalent to cash and at the same time determine those projects which were likely to fail and thereby result in their certificates being worthless securities.
In view of the above provisions of law, I am of the opinion that revenue anticipation certificates should not be classified as municipal bonds, and that without legislative authorization it would impose an extreme burden upon you as Insurance Commissioner to hold that such certificates are the equivalent of cash.
INSURANCE-Deposit Fire insurance companies which have a deposit with the State are required to makE> additional deposit to qualify to write casualty insurance.
January 2, 1948 Hon. Zack D. Cravey Comptroller General
I am pleased to acknowledge receipt of your letter of December 28th, in which you ask ''whether or not a fire company which has on deposit in this State $10,000.00 is rE:quired to deposit an additional $10,000.00 in securities in order to qualify to write casualty insurance, it being assumed, of course, that the company can qualify in other respects."
Under date of April15, 1947, I rendered an official opinion to you in which I held that a casualty insurance company now or hereafter doing business in this State, and which has already made a deposit to write casualty insu;rance, would not be required to make an additional deposit in ordE:r to write fire or theft insurance. The question now presented deals with a fire insurance company, rather than a casualty company.
Section 56-301 of the Amended Code provides in part as follows: "All fire, marine, and life, casualty, indemnity and inland insurance companies, chartered by other States or foreign governments, shall deposit with the State Treasurer bonds of thE: United States, or bonds of this State which according to the Acts and resolutions of the General Assembly are valid, or bonds of any county or municipality in this State which have been validated under the Jaws of this State, of the first value of $10,0CO.OO. . . . . Provided, that no casualty company, now or hereafter doing business in this StatE:, who as a condition precedent to, or in connection with the writing or offering to write other forms or kindS'"of insurance, other than casualty, has deposited with the State Treasurer, bonds in amount equal to the requirements of this Chapter, shall be Tequired to make out further or additional dE:posit hereunder. . . . . ." The above statute provides that where a casualty company now or hereafter doing business in this State and which writes other forms or kinds of insurance has deposited bonds in amount equal to the requirements of this Chapter, it shall not be required to make a further or additional dE:posit in order to engage in the writing of other forms of insurance. This proviso is limited to casualty companies and does not apply to other types of insurance companies. 1 am of the opinion that the above statute does not relieve a fire insurance .company from making an additional deposit in order to qualify to write casualty
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insurance. Since the proviso above referred to is limited to casualty companies, we are forced to the conclusion that such benefits were not intended to accrue to companies engaged in writing other forms of insurance. The Legislature saw fit to classify casualty companies in a different category from those companies dealing in other forms of insurance.
INSURANCE-H04pitalization An agreement whereby a management committee shall share in the dues paid by members of a corporation organized under the Hospital Service Act is violative of the Act.
August 17, 1948 Hon. Zack D. Cravey Comptrolltr General and Insurance Commissioner
In Re: Georgia Mutuail Hospitalization Service, Inc., Thormaston, Ga. I am pleased to acknowledge your letter of August 12th~ together with a copy of your examiner's report in reference to the above named subjEoct. Exhibit "G'' of this report sets forth a copy of an agreement between the Georgia Mutual Hospitalization Service, Inc., Thomaston, and the Mutual Hospitalization Management, Inc., Waycross, Georgia. This hospitalization corporation as shown by your lettEor and the examiner's report, is organized and operated under Chapter 99-10 of the Amended Code of Georgia. You ask for my opinion as to whether the Management Agreement referred to in Exhibit "G" of the examiner's report violates the terms of Chapter 99-10 of the laws of this State. You spEocifically state: "The agreement places almost full control of the affairs and operation of the Service Corporation (Georgia Mutual Hospitalization Service, Inc., Thomaston) in the hands of the Management Company whose compensation is to be a certain percent of the gross receipts dHived from the dutes paid by the members, which appears to be inconsistent with, if not in violation of, the Act under which this type of organization operates."
I agree thoroughly with your statement that the Management Agreement contained in Exhibit "G" of the examiner's report shows that almost complEote control of the affairs of the Service Corporation is in the hands of the management company whose compensation is a percent of the gross receipts derivEod from the dues paid by the members of the Service Corporation. Your View is correct that it is a violation of the Hospital Service Act (Chapter 99-10) for an organization of this type to be operated for profit. Section 99-1001 of the AmEonded Gode provides as follows:
"Any three or more persons upon petition to the superior courts of this State for a corporate charter, as is provided in Chapters 22-3 and 22-4, may be incorporated for the purpose of establishing, maintaining and operating a nonprofit ho,spital service p:lan, whereby hospital care may be provided by said corporation through an established hospital or hospitals with which it has contracted for such care, as is hereinafter defined." (Emphasis ours)
Section 99-1004 provides as follows: "Said corporations shall be governed and conducted as nonprofit organiza-
249
tions, for the sole purpose of offering and furnishing hospital service td<. their members in consideration of the payment by such members of a definite sum for the hospital care so contracted to be furnished. The necess,ary expenses of, administering the affairs of said corporations may be paid from the dues or payments collected.'' (Emphasis ours)
In keeping with the above provisions of law as applied to the management contract which you have supplied me with, I am in perfect agreement with your position that said contract violates the above provisions of law, since hospital service corporations cannot be operated for profit under the laws of this State.
INSURANCE-Mutual Companies A provision in a Farmers Mutual Insurance policy for additional assessments which does not limit the amount thereof is invalid.
Hon. Zack D. Cravey Comptroller-General and
May 19, 1948
Insurance Commissioner In Re: Cotton Farmers Mutual Insurance Association, Atlanta, Georgia. I have your letter of May 18th in which you state the following: "I will thank you to furnish me with an opinion as to whether the assess-
ment provision of the policy complies with Section 56-1417 or whether in order
to comply with this section it is necessary for the policy to limit the amount of the assessment or liability that could be imposed against a member."
The assessment provision of the' policy attached to your letter and under-
scored, reads as follows: "Policy Fee and Initial Charges. A membership fee and other initial charges
to be fixed by the Board of Directors shall be paid by the applicant at the time
of making application for insurance. "The Board of Directors shall levy on the policy holders such assessments
as, based on the amount insured and the class of property and hazard) covered, may be necessary for losses and expenses and may include lawful additions to
the reserve fund." Section 56-1417 of the Amended Code provides: "The maximum premium payable by any member shall be expressed in the
policy, or in the application for the insurance. Such maximum premium may be a cash premium and an additional contingent premium not less than the cash premium, or may be solely a cash premium. No policy shall be issued for a cash premium without an additional contingent pn.mium unless the company shall
have a surplus of at least $100,000, or a surplus which is not less in amount than the capital stock required of domestic stock insurance companies, writing the
same kind ef insurance." The above statute clearly requires the maximum premium payable by the
member to be expressed in the policy. In my view, the language set out above taken from the policy does not comply with the statutory provision as set forth
herein.
25Q
INSURANCE-Paid in Capital An insurance company granted a charter to engage in several types of insurance business may movertheless be restricted by the Insurance Commissioner to the number of types for which the requisite capital has been paid in.
January 21, 1~48 Hon. Zack D. Cravey Insurance Commissioner
I am pleased to acknowledge receipt of your letter of January 7th, in reference to the Georgia Casualty and Surety Company of Atlanta, Georgia.
You state that the: petition for charter powers provides authority to engage "in most every known class of insurance .... The petition provides for a minimum capital stock of $100,000.00 and you will note from the attached letter that the Company proposes to begin business with a paid in capital of $100,000.00 and a paid in surplus of $200,000.00." Your specific question in reference to this matter is as follows:
"In view of the fore:going, I will thank you to furnish me with arl, opinion as to whether in the circ*mstances, the granting of the charter c<mforms to the provisions of Chapter 56-2 of the Georgia Code, since petit' oners are asking for charter powers to engage in several classes of insurance business with an authorized minimum capital of only $100,000.00."
Section 56-201 of the Code provides: "All corporate powers and privilege:s to insurance companies shall be issued and granted by the Secretary of State, upon the terms, liabilities, restrictions, and subject to all the provisions of this Chapter and the laws and Constitution of this State. If from any cause the Secretary of State should be disqualified from issuing imd granting said powers, the duties required by this Chapter to be pe:rformed by the Secretary of State shall be performe:d by the ComptrollerGeneral.'' Section 56-202 sets forth the provisions required in the petition for charte:r powers. It seems to be agreed that this provision of law has been complied with, and is therefore not involved in your inquiry. Section 56-207 of the Suppleme:nt to the Code provides in part as follows: "W'hen such certificate shall have been issued, the: persons named therein, in case they have not taken the whole capital stock, may open books of subscription to obtain the full capital stock of the company, and, aLer giving such notice as they may deem expedient, may from time to time receive subscriptions until the whole capital stock shall be subscribed. The capital stock of ,said com pany shall be d.ivided into shares of $10.00 each, and shall not be less than $100,000.00 for each class of insurance to be engaged in, and no insurance company chartered under this Chapter shall commence the insurance business until at least this amount for each class of insurance to be: engaged in shall have been paid in cash, .... (Emphasis ours) The above provision of law definitely prohibits an insurance company, even though it has secured a charter, from engaging in any given class of insurance until not less than $100,000.00 has been paid in for e:ach particular class of insurance to be engaged in by the company. This requirement of law relates particularly to the insurance business to be conducted by the corporation. It would therefore be necessary for you as Insurance Commissioner to be satis-
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fied that the company in question had at least $100,000.00 for each class of insurance to be engaged in before a license to do that particular type of insurance business is issued. The powers contained in the charter of the corporation simply limit and fix the extent of the operations which can be engaged in by the corporation, provided it is able to comply with the specific insurance laws regullating this particular type of business. The powers contained in the charter do not in any sense license the company to engage in particular types of ilnsurance. Whether or not the company can qualify to engage in these various phases of insurance business is a matter which addresses itself to the Insurance Commissioner. Before a license is issued it would be necessary for you as Insurance Commissioner to examine the charter of the company in order to determine whether or not it was authorized by the State to engage in such a business, and secondly, it would be your duty to determine whether or not the company had complied with the insurance laws of this State relative to the particular type of business desired transacted. The fact that the charter authorized the company to engage in several classes of insurance business would not within itself be the determining factor. Even though the charter authorized several types of insurance business it would still be necessary for you to determine if the corporation was qualified under the law to engage in each of these classes of insurance. Many corporations are authorized to do acts which they never see fit to exercise. Should the corporation in question desire to engage in two classes of insurance, then it would become necessary for it to have at least $200,000.00 paid in cash or its equivalent. Since it has only $100,000.00, you can readily see that it can engage in only one class of insurance, provided it can otherwise qualify, even though the charter may give it the potential right to engage in other classes of insurance business.
You also ask the question of what is a class of insurance within the meaning of Section 56-207. I am inclined to agree with the definition which you have been using for administrative purposes in defining classes of insurance as set forth in your letter. It seems that life, fire, casualty, fidelity and title insuranae should be classified separately. This is true because they are each dealt with by special statutes. For practical purposes I am of the opinion that the administrative viewpoint which you take in this matter is correct. Since this is )Primarily a question of administration, and no legal issue is presently involved, I am adopting your construction in the matter.
After the charter has been granted, it seems that the further operations of the company are subject to the direction and control of the Insurance Commissioner. It is this officer who is charged by law with the responsibility of issuing licenses to engage in this particular type of business, and it therefore follows that the Insurance Commissioner must likewise be satisfied that the company is qualified to engage in such business.
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INSURANCE-Retaliatory Tax The retaliatory tax does not apply to gross premium taxes against nonresident insurance companies doing business in this State.
December 28, 1948 Honorable Charles D. Redwine State Revenue Commissioner
I am in receipt of your letter of December 28 in which you 'request my1advice as to what disposition to make. of the following claims for'\ refund of additional gross premium taxes paid by the companies for the years 1943 and \1944 under the so-called retaliatory provision of the insurance law:
National Life and Accident Insurance Co. of Nashville, Tenn...$30,006.79 Life and Casualty Insurance Co. of Tenn. ------------------------------------ 15,850.68 American Indemnity Go. of Galveston, Texas ----------------------------- 1,804.12 Houston Fire and Casualty Insurance Co. --------------------------------- 6,720.46 Fireman's Fund Insurance Co. ------------------------------------------------------ 9,073.45 Fireman's Fund Indemnity Co. ------------------------------------------------------ 2,698.40 Home Fire and Marine Insurance Co. -------------------------------------------- 2,931.80 Western National Insurance Co. ---------------------------------------------------- 1,015.06 In reviewing our files in these cases, I find that on October 20, 1943, my predecessor, Honorable T. Grady Head, rendered an opinion to Honorable Homer C. Parker, Insurance Commissioner, in which he held that the so-called retaliatory provision of the insurance law applied to gross premium taxes against non-resident insurance companies doing business in the State, which opinion would indicate that the claims for refund should not be granted. After an exhaustive review and study of this opinion, I have reached the very definite view that it is incorrect. I do not believe the conclusions of law contained in it would be sustained by the courts. Therefore, it is my advice that you proceed to work out a satisfactory settlement providing for a waiver of interest and payment of court costs by the claimants.
INTOXICATING LIQUORS-Alcoholic Beverages; Malt Beverages; Wines (Unofficial)
1. The taxing and coptrol of alcoholic beverages must be authorized at a special election before the' sale becomes legal within the county. 2. The sale or manufacture of intoxicating beverages and must be conducted under a permit from the county or municipality where located .3. No county license may be required of one paying a municipal license.
January 9, 1948 Mrs. Robert Travelute
I am pleased to acknowledge receipt of your letter of January 8th, in which you request information concerning the licensing of persons to engage in the business of selling malt beverages at retail. You also ask just what differences there are in the law controlling liquor, and those relating to malt beverages.
As suggested in your letter, it is necessary to have a special election called properly under the law, and that a majority of the votes cast at such election be in favor of taxing and controlling such alcoholic beverages and liquors before the same can be sold legally within the county. The law does not require such
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an elect:on in reference to the sale of malt beverages. Since your question relates to the City of Moultrie, I believe you will find the following provisions of law beneficial in your study of this question. Section 58-7Hi' of the Code }>Tovides as follows:
"If any business allowed under the provisions of this Chapter is proposed! to be carried on within the corporate limits of a municipality, the' ~pplic~mt for license shall pay to the proper authority, to be designated by the governing" body of such municipality, such annual license fee as may be fixed by the said' governing body, which license shall apply to and be required for each brewery or place of manufacture and also for each place of wholesale and retail distribu-tion; and it is further provided that when any of the above described businesses are licensed by municipal authority, that no county license fee shall be required by county authority."
Section 58-718 of the Code provides as follows: "The privilege of manufacturing, distributing and selling by wholesale or retail of beverages provided in this Chapter is purely a privilege and no business legalized by this Chapter shall be conducted in any county or incorporated municipality of this State without a permit from the governing authority of such county or municipality, which said authority is hereby given discretionary powus as to the granting or refusal of such permits." Under the Constitution and laws of this State, the Attorney General is prohibited from giving official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. However, it is a pleasure for me to refer you to the provisions of law applicable to your question as a matter of information.
INTOXICATING LIQUORS-Alcoholic Beverages; Malt Beverages; Wine (Unofficial)
1. Whiskey may not be sold in Wayne County. 2. Wine and beer may be sold under State and local permits.
January 28, 1948
Commander David S. Price Veterans of Foreign Wars of The United States
Your letter of January 17 relative to the possibility of the sale of whiskey, beer and wines legally by the local post of Veterans of Foreign Wars in your county received. M'r. Cook, The Attorney General, has referred this letter to the Legal Department of the Revenue Department.
The sale of whiskey is not legal in Wayne County, nor the city of Jesup. Wayne County does not permit the sale of whiskey under any condition. The Old Bone Dry Law is in full force and effect in said county. The only exception is that an individual may have and possess for his own use not exceeding one quart of whiskey. He cannot legally buy the whiskey in Wayne County. It must be purchased from a licensed liquor dealer in a wet county.
As to the sale of beer, if your post desires to handle beer and sell it to the personnel of the post it is necessary that a permit be obtained from the governing authorities of the city of Jesup, which permit is forwarded to the State Rev-
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enuE: Commissioner, and he in turn issues a State permit after the local permit has been submitted. 11 apprcant lives or has his place of business in the rural section of the county, the county authorities issue the permit.
The same rule applies to the issuing of a permit for the sale of wine. The State issues the permit after the local permit has bE:en issued and submitted.
There is no provision of law for a State permit to be issued for beer or wine gratis.
INTOXICATING LIQUORS-Alcoholic Beverages (Unofficial) LicE:nses for the sale of intoxicating liquors are issued by the county or municipal authorities, as the case may be.
January 29, 1948 Rev. Clifton A. F'orrester
This will acknowledge receipt of your letter of January 26, 1948, and to advise that the duty and responsibility of issuing a license to conduct the sale of intoxicating liquors is placed by law upon the county authorities of the county where such business is proposed to be operated, or the municipal authorities within a municipality, and the State Revenue Department.
The license must be issued by the county or municipal authorities before being submitted to the State Revenue Department. Therdore, any information for or against the granting of such a license should be directed to the local authorities who being familiar with all of the facts surrounding thE: application are in the best position to do what is right in the matter.
As a matter of information I am forwarding a copy of your letter to the State Revenue Department.
INTOXICATING LIQUORS-Alcoholic Beverages The 15 cent per wine gallon tax does not apply to unpotable liquors or plain alcohol made from distillation.
April 13, 1948 Honorable Glenn S. Phillips, CommissionE:r Department of Revenue
You request in your letter that I give you an official opmxon on whether the State Revenue Department has authority to impose State 15c wine gallon tax on the liquors referred to in Code Section 58-1049.
Under an interpretation placed upon this Section in April, 1945, the State Law Department and the State Revenue Commissioner interpretE:d this Section in the following manner: General head "Domestic Distillers, Section 49":
"On all whiskies manufactured in the State of GE:orgia and to be exported beyond the limits of this State there shall be assessed a tax of 15c per wine gallon", etc.
You will note from this Section that the State Law Department and the State Revenue Department, in imposing a tax of 15c per wine gallon, use the word "whiskey'' without reference to alcohol. It was our conclusion then, and remains to be so, that the liquors referred to as being taxable under that Section must be potable, and must have purposes beyond plain alcohol made from distil-
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lation, etc. I: is therefore my opinion that you are not authorized to impose the tax <in plain alcohol on a basis of 15c per wine gallon.
I have conclud:d from conversations with you that you are referring to non-distilled beverages and to plain alcohols in your request for an opinion. My foregoing conclusion is based on this information.
I am informed that you have been imposing the 15c per wine gallon export tax on all distilled liquors and beverages, which is in accordance with the Section to which you refer.
INTOXICATING LIQUORS-Alcoholic Beverages 1. Non-potable alcohol is not subject to 15 cent per wine gallon export tax. 2. The responsibility for analyzing distill:ry products to ascertain if subject to taxation rests on the State Revenue Department.
May 5, 1948 Honorable Glenn S. Phillips State Revenue Commissioner
I regret I have been delayed in answering your request of April 22, in regard to the taxability of the product that is being exported in bulk by Paramount Distilleries. As pointed out by you on April 13, 1948, I gave you an official opinion in which I held that straight, non-potable alcohol is not subject to the export tax of 15c per wine gallon.
The State Law Department is not charged with the responsibility of analyzing products of any distillery to ascertain whether or not such products are subject to taxation. This is an administrative matter, which comes under the jurisdiction of the State Revenue Department. I have no way of knowing what type of product is being exported in bulk by Paramount Distilleries, and for this department to ascertain an analysis of this product would be to usurp the prerogatives of your own d:partment. This we cannot do.
Again, may I point out, as I have previously, that straight alcohol, manufactured in Georgia and exported in bulk, is not subject to the 15c per wine gallon tax.
INTOXICATING LIQUORS-Alcoholic Beverages (Unofficial) 1. When a county changes from dry to wet, operators may begin business in 15 days. 2. The State does not give a r:bate on a liquor permit.
August 2, 1948 Mrs. Odessa Allen Clerk and Acting Ordinary Upson County
Your l:tter to the Attorney General about the recent election held in Upson County has been delivered to me for answer. The Attorney General is out of the State on a vacation.
It is your duty as Acting Ordinary to declare the result of the election within three days after it is held and forward to the Secretary .of State the return of the election and a copy of your order declaring the result.
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If the people vote dry then, and in that event, the liquor act is suspended and of no effect. If they vote wet then, in that event, the bone dry liquor law is suspended. When a county changes from the dry column to the wet column after an election is held, those desiring to own liquor stores and sell intoxicants have fifteen days in which to apply for a license, and at the end of the fifteen days may open for business.
The law is silent as to the time a licensed liquor dealer has to wind up his business after a county votes dry. It has been the practice of the State Revenue office to allow dealers fifteen days after a county votes dry to wind up their business and dispose of their stock of liquor. The State Revenue Commissioner has, however, ruled that liquor stores be closed immediately after the election result is declared by the Ordinary in the event the county votes dry. The Revenue Commissioner has no authority to permit the stores to stay open and sell for retail after the declaration of the result of the election, but does give the store owners a reasonable time, fifteen days, in which to dispose of their stock of liquor.
The State does not give a rebate on a liquor permit. The law does not authorize it. The local county or municipal authorities may reimburse the licensee. Some counties and towns do and some do not. It is discretionary with the local authorities.
The time allowed the liquor store dealer of fifteen days to dispose of his stock of liquor begins when the Secretary of State officially notifies the State Revenue Commissioner and ends fifteen days thereafter.
This is an unofficial opinion. The Attorney General's office is not permitted by law to render official opinions except on the request of the Governor and the heads of the departments of the State government. We are glad, however, to help you in any way at any time.
As soon as official notice is received from the Secretary of State's office, it has been the practice of the State Revenue Commissioner to send his agents and officially close the liquor stores.
INTOXICATING LIQUORS-Alcoholic Beverages; Ma11t Beverages; Wine (Unofficial)
1. Malt beverage licenses outside corporate limits may be issued in all counties by the Commissioner of Roads and Revenues, or, if none, by Ordinary. 2. Ptrsons in dry counties may possess, for use only, one quart of spirituous, alcoholic or vinous liquor.
August 16, 1948
Mr. Lester M. Lewis Your letter of August 11, 1948 to the Attorney General has been delivered
to me for answer. The Malt Beverage Act gives the county authorities the right to issue all
malt beverage licenses outside of the corporate limits of the towns in all the counties of the State. There are no dry counties in the State of Georgia as far as beer or malt beverages are concerned. All authority is placed in the Commissioner of Roads and Revenues, and the Ordinaries of the counties where they have no County Commissioner, to license or not to license the sale of beer. I
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quote you Sections 58-717 and 58-718 of th~ Code of Georgia Annotated: "58-717. County licenses.-Upon any of the above designated businesses
located outside a municipality, the governing authority of such county, in which any of the said businesses are located, is authorized to fix an annual license fee. The license fee so fixed shall apply to and be required for each brewery or place of manufacture and for each place of wholesale and also for each place of retail distribution outside of the municipality and/or including towns or cities."
"58-718. Discretion as to grant of permits.-The privilege of manufacturing, distributing and selling by wholesale or retail of beverages provided in this Chapter is purely a privilege and no business legalized by this Chapter shall be conducted in any county or incorporated municipality of this State without a permit from the governing authority of such county or municipality, which said authority is hereby given discretionary powers as to the granting or refusal of such permits."
As to the question you ask about the Sheriff having authority to close up a malt beverage licensee's place, he does not unless the County Commissioner or the Ordinary, as the case may be, withdraw his permit or license to sell. They can withdraw it at any time without cause if, in their discretion, they think it should be withdrawn.
The liquor laws permit a citizen in a dry county to have not exceeding one quart of liquor. Any amount over that would be illegal and subject to confiscation. I quote you Code Sections 58-1073 and 58-1077 of the Georgia Code:
"58-1073. Possession of a quart legal.-It shall not be unlawful for any person to have and possess for use and not for sale, in any county of the State, one quart of the liquors and beverages described in this Chapter, which may have been purchased by the person for use and consumption from a lawful and authorized retailer and properly stamped, and this section shall be construed to repeal any and all laws in conflict with this section and Chapter as herein expressed."
"58-1077. Possession of more than quart in dry county, misdemeanor.Any person found in possession or control of more than one quart of spirituous, vinous, or alcoholic liquor, in any county of this State (except such counties in which liquor may be legally sold or transported under the terms of this Chapter) shall be guilty of a misdemeanor and, upon conviction, punishable as in cases of misdemeanors. The fact that such ptrson may have a license or liquor stamps shall be no defense in such prosecutions, where said liquor is carried into a county to which the terms of this Chapter do not apply, and wherein liquor is not legalized under the terms of this Chapter."
This is an unofficial opinion. The Law Department is not permitted by law to render official opinions except to the Governor and on the request of the hEoads of the different departments of the State government. We are, however, always glad to assist any citizen in any way we can.
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INTOXICATING LIQUORS-AICODholic Beverages f. The withdrawal of funds from the Treasury for refund of stamp taxes and warehousing charges on goods returned to distiller for exchange is illegal. 2. The same object, as to stamv taxes, could be attained by cancellation of stamps and issuance of replacements, on the th~::ory of erroneous collection. 3. Warehouse charges constitute a rental and not a revenue measure, and any provision for refund must be made by the Commissioner.
Honorable Downing Musgrove State Revenue Commissioner Department of Revenue
October 28, 1948
I am pleased to acknowledge your letter. of October 15th in which you requested my opinion as to the legality of making warehouse and tax stamp refunds when whiskey wholesalers desire to exchange merchandise with the distiller for various reasons.
From my investigations in this matter, I find that the State Auditor, Honorable B. E. Thrasher, Jr., wrot~:: to the Cashier of the Revenue Department the following memorandum of March 2, 1944:
"You are to continue handling current refunds such as items of errors, return of license stamps, transfer of license stamps, and such other items of a current administrative nature from the funds that you hav~:: on hand in collections from the respective sources.
"Refunds such as those caused by court decisions, refunds involved in interest payments such as income tax and such other refunds for which all of that class of tax has be~::n remitted to the State Treasurer, shall be continued to be handled as required by law.
"The procedure has been for a great number of years to allow the Revenue Department to correct errors of current nature, which are supported by sufficient documentary evidence for us to audit same."
Code Section 40-1805 provides for:
"Duties and Powers of State Auditor.-The duties and powers of the State Auditor shall be as follows:
(a) To devise, and wi:h the approval of the Governor, to promulgate, install, and establish forms and records for the collecting and paying out of all moneys, funds and revenues of the State and to insure the protection and proper use of all stores, equipment and property of the State."
Code Section 58-1022 (h) provides in effect that the Revenue Commissioner has authority to adopt regulations and standards that are ... inconsistent with the law of this State, and he m;ay determine the conditions under which dist:Iled spirits may be withdrawn from said warehouses and distributed.
Under such authority, the Regulation Number 406 was adopted, and it provides that when merchandise is returned directly to the distiller, the tax stamp and warehouse charges will be refunded. Also, such refunds will be made wh~::n the spirits have been destroyed by hurricane, windstorm, etc., all of which are subject to a twenty-five cent per cas: cancellation fee.
In view of the above, it is apparent that the Commissioner of Revenue has authority to make such a regulation and that the State Auditor has some
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authority to set up procedures in order that his function may optrate efficiently from a practical aspect.
It is noted that the State Constitution provides: "Section 2-5503. Paragraph III. Revenue to be paid into general fund.All money collected from taxes, fees and asse:ssments for State purposes, as authorized by revenue measures enacted by the General Assembly, shall be paid into the General Fund of the State Treasury and shall be appropriated thtrefrom, as required by this Constitution, for the purposes set out in this Section and for these purposes only." It appears, therefore, that the question narrows to whether such a procedure as prescribed by the State Auditor viola.es the foregoing constitutional provision. It is my opinion that the procedure set forth by the State Auditor relative to refunds for revenue stamps is irregular and probably illegal from a procedural point of view. It amounts to a delE:gation of authority which the Auditor does not have. It is true that the substantive result would have attained if the procedure set out by the Constitution had been closely followed, because reve:nue stamps are conditioned precedent on sales. They simply constitute a sales tax or a revenue me:asure, and if no sales have taken place, there might have been an erroneous collection of taxes for which refunds are legally authorized. I desire to call your attention to the provision of our law which authorizes replacement of mutilated stamps, Code Section 58-1052 (Acts 1937-38 Ex. Sess. pp. 103, 116). This Code Section provides that "the State Re:venue Commissioner may, in his discretion-replace mutilated stamps when fully satisfied that said stamps have not been used.'' It is clear that you, as Commissioner, have authority to make stamp replacements in your discretion where they have been cance:lled, lost or mutilated. This procedure does not authorize refunds in money. Moreover, it would demand by implication that replacements must be made only in exceptional cases and where the cause is conclusively established to the satisfaction of the Commissioner under a procedure that would constitute a record sufficiE::nt to satisfy the State Auditor. No replacements, under the circ*mstances, could be made without official direction of the Commissioner. It is important to remember that while authority is given the Commissioner to make replacements of revenue stamps under certain conditions that all monies collected from taxes and fees resulting from r~::venue measures must be paid into the Treasury, subject to withdrawal only upon proper warrant based on illegal or erroneous collections. Refunds on warehouse charges, when the merchandise is exchanged as provided by law, is authorized. See Code Section 58-1014:
"58-1014. Space in warehouse to be rented.-The State Revenue Commissioner shall charge a rental on each square foot of floor space, at a rate to be determined by the 'State Revenue Commissioner, wh'ch rate shall apply, at the same rate per square foot, for all manufacturers or distillers."
Since the money collected for warehouse charges is in the nature of a rental and not strictly a revenue measure, it is my opinion that it was not the intent of the Legislature to make it such a measure. It is to be observed that the Legislature authorized the Commissioner to dete:rmine conditions by which withdrawals are made from the State warehouse. For these reasons, it is clear to me that refunds of this nature may be made under such procedure as thE:' Commissioner adopts, subject to the approval of the State Auditor. Again, it
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is important to remember in this conneCtion that no refunds for rental chargr,s for exchanging merchandise should be made except upon the approval and direction of the Commissioner. Applications for refunds of this nature should be supported by sufficient documentary evidence clearly showing the cause and such other informJation as would be needed to show by the record that they were made on a replacement basis.
While the suggestions at to procedural matters in this opinion are not to be found in the statutes, I give them only for the idea of interpreting the intention of the General Assembly and in the hope that they will be helpful to the Commissioner.
INTOXICATING LIQUORS-Malt Beverages A municipality may not, except by express legislative authority, engage in the business of selling beer.
Honorable Glr,nn Phillips
January 28, 1948
Commissioner of Revenue
This will acknowledge receipt of your letter of January 22, 1'948, in which yo~ request an opinion on the following question:
"Is it permissible for a city or municipality to engage in the business of selling beer?"
The Malt Br,verage Act of 1935, as amended and now codified under Chapter 58 of the 1933 Annotated Code of Georgia, places upon municipalities of the State the responsibility and duty of passing upon the request of applicants to engage in the business of selling malt beverages, and to issue permits and licenses to conduct such business in municipalities.
It is most reasonable to assume that the General Assembly intended for the municipalities of thr, State to be a part of the machinery for the proper control and supervision of the sale of malt beverages within municipalities, and not to place municipalities in the field of private enterprise in competition with private business.
In the case of Keen vs. Mayor and Council of Waycross, 101 Ga. 588, the Supreme Court of this State held:
"While a municipal corporation may lawfully do such things as are neces-
sarily incident to the proper discharge of its functions, it is not, as a general
rule, within the power of such corporation to engage in such an occupation or business as is usually pursued by private persons."
The Court in discussing this case said:
"The primary design of the creation of a municipal corporation is, that it may perform certain public functions as a subordinate branch of government; and while it is invested with full power to do everything necessarily incident to a proper discharge thereof, no right to do more can ever be implied. Accordingly, in the absence of express legislative sanction, such a corporation has no authority to engage in any independent business enterprise or occupation such as is
usually pursued by private individuals. In other words, its legitimate duty is to deal with public affairs, and not those which are purely private and entirely unconnected with the proper administration of its governmental duties."
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In the case of Mayor of Leeaburg va. Putman, 103 Ga. 112, the Supreme Court of this State held:
"Neither the 'general welfare' clause usually found in the charter of towns and cities, nor the special powers, 'to license and regulate the management of bar rooms, saloons, etc.', includes the power to run and operate bar rooms and saloons or to otherwise embark the municipal corporation having authority to exercise such powers only, either in the business of selling liquor, or in any other commercial enterprise. The exercise of such a power, being inconsistent with the purposes for which municipal corporations are ordinarily organized, must rest upon express legislative authority, and in the absencE~ of such authority, such a power does not exist. The power to license saloons clearly imports that the business must be in the hands of some person other than thEi licensing authority. One person cannot be the licensing power and the licensee.''
This reasoning of our Supreme Court applies firmly to the question under consideration. The duty and responsibility placed upon the municipalities of the StatE~ in passing upon the request of applicants to engage in the business of selling malt beverages, and to issue permits and licenses to conduct such business in municipalities, imports that the business of selling malt beverages must be in the hands of some person other than the licensing authority.
The Supreme Court in this case further said: "It is only when the General Assembly sees proper to delegate to a municipal corporation the right to Gngage in that which would ordinarily be the business of an individual and in the business of the public, that the corporation can exercise such power. It is only under the exercise of the police power that this can be done in any case, and the sovereign power of the State must determine in each instance whether it is for the peace, good order and welfare of the State that a particular business shall be operated directly by the State or one of its. municipal corporations.'' It is my opinion that unless express power has been generally conferred upon municipalities by the General Assembly to engage in the selling of malt beverages, as now legalized and codified under Chapter 58 of the 1933 Annotated Code of Georgia, that there is no authority of law for a municipality to engage in such business. I am of the further opinion that the General Assembly in legalizing the sale of malt beverages under the Malt Beverage Act of 1935, as amended, intended for the municipalities of the State to be a part of the machinery for the proper control and supervision of the sale of malt beverages within municipalities, and did not intend to place municipalities in the business of S6lling beer with public funds in competition with private business. I am of the further opinion that the General Assembly in enacting the Malt. Beverage Act intended that the business of selling malt beverages be in the hands of some person other than the licensing authority, and did not intend for a municipality to be the licensing power in a municipality and also the licensee~
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INTOXICATING LIQUORS-Malt Beverages (Unofficial) A wholesale beer concern located in one city, having its salesman solicit orders for beer in another city in which it has no license, which orders are subsequently delivered and paid for to the salesman in the second city, violates the ordinance: of the latter requiring a permit and license for the sale of beer therein.
February 19, 1948 Mr. Sam Morris Morris Beer Distributing Company
This will acknowledge receipt of your letter of February 8, 1948 to the Attorney General with reference to a license imposed by the City of Valdosta for the sale of bee:r in said city, which has been referred to me for reply.
The Attorney General cannot under the law render official opinions to anyone except the Governor and heads of the various departments of State. However, I am glad to quote to you from a decision in the case of Gaissert vs. Stat.e, 57 Ga. App 842, which I think will answe:r your question. The facts of operation in this case are so similar to yours that I will state them here for your information.
" ... 'The Griffin Grocery Company is a wholesale dealer in groceries, including beer, with its place of business in Griffin, Spalding County, Georgia. It has no agent, agency, or p'ace of business "r: Coweta County. The Griffin Grocery Company has paid to the State and to the County of Spalding, all taxes, licenses, .and registration fees for the year 1937, required of it as wholesale beer dealer by the malt-beverage act (Ga. Laws, 1935, page 73). It has paid no license fee to and received no permit from the county authorities of Coweta County to sell beer at wholesale in said county. G. C. Gaissert, who resides in Griffin, Spalding County, Georgia, is regularly employed by the Griffin Grocery Company as a traveling salesman, to call on retail merchants and take orde:rs for such merchandise as the Griffin Grocery Company may have for sale, including beer. Said G. C. Gaissert does not deliver any articles sold, nor does he collect for any .articles at the time the order is delivered; the collection being made subsequent to delivE:ry either by mail or by the said salesman at a subsequent date. The said G. C. Gaissert has no permit or license' from Coweta County to sell beer at wholesale in said county. Beer, such as sold by the Griffin Grocery Company, can be legally sold in Coweta County by persons, firms or corporations .complying with the provisions of the malt-beverage act (Ga. Laws, 1935, page: 73), and the legal regulations legally adopted by the county authorities of Coweta County under said act. The county authorities of Coweta County have .adopted certain regulations, copy of which are hereto attached marked Exhibit A. That under the regulations, Cowe:ta County will not issue a permit or license to sell beer at wholesale in Coweta County outside of an incorporated town or city without the applicant paying therefor the sum of $100. That on or about May 14, 1937, G. C. Gaissert, represen ing the Griffin Grocery Company, called on H. S. Arnold, a retail merchant of Coweta County, Georgia, being located outside of an incorporated city or town, who had complied with all the laws of the State of Georgia and regulations of Coweta County, and was legally authorized to sell beer at retail in said county, and took from said H. S. Arnold an order for a quantity of beer, with other goods. That said order was transmitted to the Griffin Grocery Company, and the goods, including the beer, were
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subsequently delivered to the said H. S. Arnold by truck from the! stock of the Griffin Grocery Company at Griffin, Georgia. The beer and other goods were paid for by H. S. Arnold to G. C. Gaissert, the traveling salesman for the Griffin Grocery Company, upon a subsequent visit after the delivery, in regular course of business. The Griffin Grocery Company operates no 'beer' trucks in Coweta County from which beer is sold to retail dealers.' " . . . .
The court held in the above stated case as follows: "... 'The privilege of manufacturing, distributing, and selling by wholesale or retail of beverages provided in this act is purely a privilege and no business legalized by this act shall be conducted in any county or incorporated municipality of this State without a permit from the governing authority of such county or municipality, which said authority is hereby given discretionary powers as to the granting or refusal of such permits.' See Harbin v. Holcomb, 181 Ga. 800 (184 S. E. 6'03) .'' . . . ". . . The line of reasoning adopted by the Supreme Court in City of Colquitt v. Jefforc:ls Oil Co., 170 Ga. 605 (154 S. E. 140); Wofford Oil Co. v. Willacoochee, 184 Ga. 275 (191 S. E. 128); was with respect to a business which is a legal business, and not one coming under the police power of the State as does the one at bar, although this fact might be immaterial when a license for a place of distribution was involved.'' ... "It will be noted that before a license is granted a permit must be had. The granting arid issuing of the license may of itself amount to a permission. As to license or occupation taxes 'the situs of the business is the controllilng factor,' and while the situs of the Griffin Wholesale Company may be in Spalding County, and the mere place of delivery is immaterial with respect to fixing a situs for taxation or license, we think a different rule applies in respect to sales of this character. . . . Suppose, in the present case, Coweta County had refused to allow beer to be sold at retail in its borders OUtside municipalities, could it be contended that the transaction in the present case was not a violation of the law? See Collier v. State, 54 Ga. App. 346 (187 S. E. 843). The sale of whiskey sent by express c.o.d. is not complete until the whiskey is delivered and paid for, and the express company in such a case, where its sale is prohibited, is guilty if it acts knowingly in co:m,pleting the sale. Crabb v. State, 88 Ga. 584 (15 S. E. 455). There is a clear distinction in a place of business which may be subject to a license or occupation tax and a single sale. Collier v. State, supra. Where an order is taken and delivery made at the same place, although not at the time of the taking of the order, and payment made therefor, such sale is completed at that place. Such a sale may not subject such person to the payment of a license tax..... but where the article sold comes within the privilege class rather than as a matter of right, and. a permit is required by the governing authorities before such sale may be had at all, a sale without such permit is a violation of the statute. The Griffin Grocery Company in this case contracted to sell and deliver this beer in Coweta County. They did so... .''
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INTOXICATING LIQUORS-Malt Beverages (Unofficial) 1. A permit to deal in malt beverages is not a right but a priviloge. 2. The fixing of prices is a matter of contract between the wholesaler and the retailer under the provisions of the Fair Trade Act.
March 12, 1948 Mr. Stanley A. J onos, Executive Secretary Georgia Beer Wholesalers Association, Inc.
Your letter of March 3rd, directed to Mr. Eugene Cook, Attorney General, has been delivered to me for answer.
The Malt Beveragt Act of 1935 only authorizes the manufacture and sale of malt beverages by permit; PRIVILEGE: I quote you section 58-701 of the Code of 1933 Annotated:
"Dealing in malt beverages declared a privilege. The business of manufacturing, distributing, selling or otherwise dealing in malt beverages as her;inafter defined is a privilege under the laws of this State, and there are hereby imposed license and excise taxos as hereinafter specified, to be paid for the exercise of such privilege." (Acts 1935, p. 73.)
The duty of enforcing the act was placed in the State Revenut Commission, now the State Revenue Commissioner. I quote you section 58-703 of the Code of 1933 Annotated:
"Revenue Commission to enforce Chapter and promulgate regulations.The State Revenuo Commission of this State, hereinafter referred to as the Commission, shall enforce this Chapter and shall promulgate such regulations as it deems necessary for this purpose." (Acts 1935, p. 73.)
To fix a max mum and minimum price in the malt beverage business would have to be done under the provisions of the Fair Trade Act, Chapter 106-4, and if a maximum and a minimum price were fixed it would be a matter of a contract between the wholesalers and the retailers. Tht Revenue Commissioner would not have a legal right to pass an order fixing a maximum and minimum price.
It has been the policy of the Rtvenue Department, as administered by the Commissioner, to disapprove unfair practices and my information is that the present Commissioner would like to see all unfair practices in the trade discontinued.
INTOXICATING LIQUORS-Malt Beverages (Unofficial) 1. Malt beverage dealers in rural areas are licensed by county officers and in towns by municipal authorities who collect therefor, and for additional 1 cent tax. 2. Tax Collector is not entitled to commissions on either licenses or on the additional 1 cent per bottle tax.
April 21, 1948 Mr. E. E. Plowden Tax Collector, Calhoun County
Your letter of April 19, 1948 received. The subject matter of your inquiry is covered in the Malt Beverage Act. Your attention is called to Sections 58-717 and 58-718 of the Georgia Code Annotated, to-wit:
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"58-717. County licenses.-Upon any of the above designated businesses located outside a municipality, the governing authority of such county in which any <lf the said businesses are located, is authorized to fix an annual license fee. The license fee so fix:d shall apply to and be required for each brewetrY or place of manufacture and for each place of wholesale and also for each place of retail distribution outside of the municipality and/or including towns or cities."
"58-718. Discretion as to grant of permits.-The privilege of manufacturing, distributing and selling by whol:sale or retail of beverages provided in this Chapter is purely a privilege and no business legalized by this Chapter shall be conducted in any county or incorporated municipality of this State without a permit from the governing authority of such county or municipality, which said authority is hereby given discretionary powers as to the granting or refusal of such permits."
It is made the duty of th: County Commissioners Of Calhoun County to license nualt beverage dealers in the rural areas of the county and the municipal authorities those dealers that live in the towns. The law places the administration of the law entirely in their hands. Whatever licenses they issue, it is their duty to collect for.
The one cent a bottle tax in addition to the license! tax is not provided for in the Malt Bevtrage Act. Collecting the license tax nor the one cent a bottle tax does not come under the scope of the duties of your office and you would not as Tax Collector be entitled to a commission on the amount, or amounts, collected.
We are glad to give you this information. However, this is an unofficial opinion as the Attorney General is not authorized by law to render official opinions other than at the dir:ction of the Governor or on request from the heads of the State Departments.
INTOXICATING LIQUORS-Licenses (Unofficial) A state liquor, malt beverage or wine license may be transferred only to the legal representative of a deceased licensee.
June 23, 1948 Honorable Wilton Hill, Mayor City of Reidsville
There is no provision under the Malt Beverage Act, Wine Act, nor the Whiskey Act whereby a license may be transferred, except the Department of Revenue permits the representative of an estate of a man who has diod to operate the business as a representative of the estate for the remainder of the year for which th: license is issued.
Legally, those who purchase a liquor business, malt beverage business or wine business of necessity must obtain a new State license. If they desire a liquor store license, wine license or malt beverage license, they should apply t<l the State Revenue Commissioner.
It is a violation of the law to undertake to operate either business under a transferred license, as far as the State .Revenue Department is concerned.
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Some of the municipalities of the State transfer their local licenses and some do not. That is up to the local authorities.
Both your telegram to the Attorney General and to the State Revenue Commissioner have been referred to me for answer.
INTOXICATING LIQUORS-Transportation (Unofficial) Transportation of untaxed liquor except to a State warehouse is a misdemeanor.
April 6, 1948 Honorable Greek L. Rice Attorney General of Mississippi
Receipt is acknowledge of your letter of March 26, 1948 in which you requested that I send to you the provisions of the Georgia law reiative to the transportation of intoxicating liquor.
I believe the following Sections of the Georgia Code Annotated will be of interest to you:
"58-1013. Warehouses to be provided.-The State Revenue Commissioner shall furnish warehouses or storage places, in any county or counties wherein the sale of distilled spirits is legalized, throughout the State, as in his discretion he deems expedient, for the purpose of furnishing ample storage space for the products of all manufacturers or distillers.''
"58-1019. Misdemeanor to accept liquor except through State warehouses. -It shall be unlawful for any person, firm, or corporation either as an indi vidual, wholesaler, or retailer to accept delivery or shipment of spirituous liquors int~;nded for sale except through said State warehouses; and upon conviction in a court of competent jurisdiction shall upon an accusation or an indictment charging such illegal acceptance be punished as for a misdemeanor."
"58-1020. Transportation of untaxed liquor except to warehouse a misdemeanor.-It shall constitute a misdemeanor for any private, contract, or common carrier to transport any alcoholic beverages or liquors intended for sale in this State except for delivery to a State warehouse provided for in this section, unless the tax on such alcoholic beverages or liquors has been paid and the evidence thereof attached to the container as provided herein."
"58-1047. Reports by carrier of liquors transported.-Every person or common or contract carrier transporting distill~;d spirits, liquors, and wines into the State shall immediately report same to the State Revenue Commissioner, which report shall show the consignor, consignee, and quantity delivered."
"58-1048. Failure of carrier to report is misdemeanor.-Upon failure to comply with the terms of Section 58-1047, said person or common or contract carrier, its agents and employees, shall be guilty of a misdemeanor, and upon conviction thereof shall be so punished.''
"58-1053. Importation without payment of tax.-The Revenue Commissioner shall be authorized in his discretion to permit importation of distilled spirits or alcohol into any county, where the manufacture and sale of the same has been legalized, by permitting the same to be shipped to a State warehouse or warehouses and there stored without such payment of tax, provided for herein, but such rules and regulations shall provide for the collection of all taxes due on distilled spirits or alcohol as it is withdrawn from the State warehouse and the tax stamps affixed thereon.''
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When I was Revenue Commissioner, a pamphlet was prepared which con tains all of the liquor statutes and regulations. There has been no material change in the law since that time; however, the regulations are now in the process of being revised.
Please find enclosed a copy of this pamphlet and I hope it will give you, a compltte picture of the intoxicating liquor laws and regulations in Georgia.
MUNICIPAL CORPORATIONS-Annexation (Unofficial) Authority of city to annex suburban territory is given by Act of General Assembly amending charter, which amendment may provide that annexa tion be with or without referendum.
January 13, 1948 Hon. Skaggs, Hays & Fahey
I have your letter of January 2, 1948, in which you request information as to the authority of the City of Atlanta to annex suburban territory.
It would Stem that you have been misled by the newspaper article to which you refer. Prior to the last session of the General Assembly in 1947, annexation of suburban territory to the City of Atlanta was accomplished by an Act of the General Assembly amending the City Charter. No referendum was required for such annexation. This has been done many times; for example see Ga. Laws 1929, page 830; Ga. Laws 1931, page 654; Ga. Laws 1933, page 857.
At the 1947 Stssion of the General Assembly, Acts were passed amending the Charter so as to enlarge the corporate limits, but requiring approval by referenda in the annexed property before the annexation became tffective. These Acts are in Ga. Laws 1947, pages 1559 and 1625.
Elections under thtse Acts have been held and the annexations were defeated.
It is my opinion that the Acts of 1947, referred to above, did not serve to relinquish the power of the Legislature to enlarge the corporate limits of cities without referenda. This opinion is strengthentd by the fact that the 1947 Legislature did in fact enlarge the corporate limits of Atlanta without providing for referenda. Ste, Ga. Laws 1947, pages 1719 and 1633.
The nature and importance of the property annexed would seem from a casual observation to explain why both methods of annexation were used by the 1947 General Assembly.
Please be advised that the Attorney General of Georgia is prohibited by law from rendering official opinions to anyone except the Governor and the heads of the various State Departments; therefore, this is a strictly personal and unofficial opinion and not binding on anyon.
MUNICIPAL CORPORATIONS-Arreat (Unofficial) City police of an incorporated municipality have limited power of arrest outside city limits.
April 30, 1948 Honorable Wendell R. Campbell
We have been requested by the Dtpartment of Public Safety to write you an unofficial and non-binding opinion with regard to a question which you have presented, that is:
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"Do the city police have authority to stop and fine a person outside their own city limits?''
The city police of any incorporated municipalities do not have authority to arrest persons outside thE; corporate limits of such municipalities except where specifically given that authority by special Act of the General Assembly relating to that municipality, or where the person so arrested is a fugitive from justice, or where a crime is committed in the presence of the arresting officer.
MUNICIPAL CORPORATIONS-Assessments A city has no power to levy sidewalk assessments on State property unless power is confErred in its charter, and then only with consent of the State.
January 2, 1948 Honorable Tom Linder Commissioner of Agriculture
I have your letter of December 17, 1947, with enclosures, in which you request my opinion as to whether or not you are authorized to make payment to cities for sidewalks constructed on propHty adjoining the sites of State Farmers Markets.
The Supreme Court of Georgia in the case of City of LaGrange v. Troup County, 132 Ga. p. 385, in deciding whether or not a mun'cipality could levy local assessments against a county, stated the following:
"We think the better view is that where general power is given a municipality to levy local assessments upon the property benefited by street improvements, and there is no provision clearly showing that public property shall be subject to such assessment, there is an implied exception in favor of its exemption. The municipality can not assess abutting public property unless the power to levy such assessment is clearly given."
An examination of the city chartEr of Macon does not reveal that the city has the authority to make public property subject to assessments for sidewalks.
The sites of the Farmers Markets are public property, and it has been held by the Supreme Court that the activities of the Commissioner of Agriculture in creating and operating FarmErs Markets are governmental functions. Barwick v. Roberts, 192 Ga. p. 783, 1941.
It is therefore my opinion that the City of Macon has no authority to levy on the sites of the Farmers Markets, and that you are not bound to pay sidewalk assessments. This opinion will prevail in all municipalities throughout the State unless the charter creating a municipality grants its authority to make assessments against public propErty. I know of no such grant in any city in Georgia, and even should such a grant exist, it is my opinion tha': no valid levy and sale could be made .of the sites of the Markets unless the State, through proper channels submitted to suit, inasmuch as the State cannot be sued without its consent. See Barwick v. Roberts, supra.
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MUNICIPAL CORPORATIONS-Charters (Unofficial) A local area may be incorporated as a municipality only by Act of the Legislature.
April 19, 1948 Hon. Wm. M. Horlock, President Port Wentworth Civic Club
I am pleased to acknowledge your letter of April 13th, in which you request information on the subject of incorporating a local area into a municipality.
Municipal corporations are created by the Legislature. The first step in this procedure is to have your local rc::presentative and senator to agree to assist in such a plan. The laws relating to municipal corporations will be found in Title 69 of the Code. These statutes are so voluminous that I am unable to send you a copy of same.
Under the Constitution and laws of this State, the Attorney General is prohibited from giving official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. I am glad however, to send you this letter as a matter of information, and assure you of my earnest dc::sire to render any assistance that I can to the citizens of our State.
MUNICIPAL CORPORATIONS-Charters Sets out the charter of the Town of Geneva.
October 5, 1948 Mr. B. B. Dixon
This will acknowledge receipt of your letter of September 27, 1948, in which you ask the following information:
Whether or not the Town of Geneva, Georgia is incorporated. As you know, the Attorney Genc::ral is prohibited by law from giving official opinions or advice to anyone except the Governor and heads of the various State departments. However, I am glad to give you the following information, which .is binding upon no one. The Town of Geneva was incorporated by Act approved August 18, 1913 (Ga. Laws 1913, pp. 817, 821), which is as follows: "An Act to incorporate the town of Geneva, in County of Talbot; to define its corporate limits; to provide for a Mayor and Council and other officers of said town; to prescribe their duties and powers; to repeal Act of October 18th, 1870, and for other purposes. "Section 1. Be it enacted by the Gentral Assembly of the State of Georgia, and it is hereby enacted by the authority of the same, That from and after the passage of this Act the Town of Geneva, in the County of Talbot, be, and is, hereby incorporated under the name of the Town of Geneva. "Sec. 2. Be it further enacted by the aforesaid authority. That the corporate limits of the said Town of Geneva shall be as follows: One-half mile in every direction from the Depot of the Central of Georgia Railroad in said town: "Sec. 3. Be it further enacted by the authority aforesaid, That the municipal authorities of said Town of Geneva shall be a Mayor and 4 Councilmen, a Marshall and Clerk to be elected by Council, all salaries of off;cial3 to be fixed
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by the Mayor and Council. The said Mayor and Councilmen hereby constitute the body corporate under the name of the Town of Geneva, and by the said name may sue and be sued, plead and be impleaded, purchase and hold real esta::e and personal property necessary to enable them the better to discharge their duties and needful for the good order, government and welfare of said town, and by same name shall always have perpetual succession.
''Sec. 4. Be it further enacted, that on the 1st Wednesday in January, 1914, and annually thereafter on the same day and same month an election shall be held in said town for a Mayor and Councilmen thereof, said election to be under such supervision, rules and regulations (not inconsistent with the laws regulating county elections) as the Council may prescribe. That A. W. Parker of said town is hereby appointed Mayor and J. M. McCrary, A. S. Persons, S. T. Smith and A. T. Maund are hereby selected and appointed Councilmen of said Town of Geneva.
"Said named Mayor and Councilmen to serve until their successors are elected and qualified. Said Mayor and Councilmen to take the usual oath before entering upon the discharge of their duties.
"Sec. 5. Be it further enacted, That all persons who have been bona fide residents of said town for three months preceding an election therein and who are qualified to vote for members of the General Assembly shall be allowed to vote at any election held in said town.
"Sec. 6. Be it further enacted, That the Mayor and Councilmen and such officers of said town as are hereinafter provided for shall after election or appointment to office and before entering upon the duties thereof, take and subscribe the following oath (which may be administered by any officer authorized by laws of Georgia to administer oaths): 'I do solemnly swear or affirm that I will faithfully discharge all duties incumbent upon me as Mayor or Councilman or other officer of the Town of Geneva according to the best of my ability, so help me God."
"Said oath with the certificate of the officer administering the same shall be filed with the officer intrusted with the records of the town.
"Sec. 7. Be it further enacted, That the Mayor and Council shall have power and authority to electsuch Marshals, Clerks, and other subordinate officers as may be deemed necessary for carrying on the power herein granted and to prescribe the duties and compensation of such officers and require of them such bond as they may deem necessary, payable to such town in its corporate name. Said Mayor and Council .shall have the power and authority to elect a non-resident of said town Marshal if they deem it best to do so.
"Sec. 8. Be it further enacted, That the Council of said town shall have the power therein to lay off, close, open, and keep in good order and repair, roads, streets and sidewalks for the use of the public or any citizen thereof, to prevent injury or annoyance to the public or individual from anything dangerous or unwholesome; to protect places of Divine Worship in and about places where held; to abate anything which in the opinion of a majority of the whole Council shall be a nuisance; to protect the property and persons of said town; to preserve the peace and good order therein, and for this purpose to appoint when necessary, a police force to assist the Marshall in discharge of his duty; to pl'ovide for the usual assessment of taxable property therein, which in no event shall be greater than one-half of one per cent of the value of the taxable property; to adopt rules and regulations for the government of its own body. The Council
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shall have power to make and pass all needful orders, ordinances and by-laws, not contrary to the Constitution and laws of Georgia, to carry into effect the foregoing powers conferred upon said town, and to this end may prescribe and impose and enact reasonable fines, penalties and imprisonment in the town prison, if there be one, or the county jail, for a term no: exceeding twenty days,
"Sec. 9. Be it further enacted, That the Mayor of said town shall have authority to bind over or Commit to jail offenders against any criminal law of Georgia, whenever in the course of investigation before him a proper case therefor shall be made out by evidence.
"Sec. 10. That said Mayor and Council shall have power to elect Mayor pro tern., who shall perf.orm all duties of the Mayor when for any cause he cannot be present to perform the duties of his office; also to fill any vacancy that may occur in the office of Mayor or Council or any subordinate officer of said town.
"Sec. 11. Be it further enacted, That said Mayor and Council shall have full power and authority to require any person, firm, company or corporation, whether a resident or non-resident of said town, engaged in or carrying on, or who may engage in, prosecute or carry on any trade, business, calling, vocation or profession within the corporate limits of said town, by themselves or their agent or agents, to register their names and business, callings, vocation or profession. annually, and to require such person, company or corporation to pay for such regist~ation and for license to prosecute, carry on or engage in such business, calling or profession, such amount as the said Mayor and Council may prescribe.
"Said Mayor and Council may provide by ordinance for the punishment of all persons, firms, companies, or corporations required by ordinance to pay such occupation tax, or take out license for same, who engage in, or offer or attempt to engage in, such business, profession or occupation before paying such tax or taking out such license, or who fail to comply in full with all the requirements of the town and Council in reference thereto.
"Sec. 12. Be it further enacted, That the Mayor of said town shall be the chief executive officer thereof; he shall see that the ordinances, by-laws, rules and regulations of Council are faithfully executed; he shall have control of the Police of said town and appoint special Police when he may deem necessary. He shall have power to issue executions for all fines, penalties and costs imposed by him, or he may require immediate payment thereof, and in default of such immediate payment he may imprison the .offender as hereinbefore provided.
"Sec. 13. Be it further enacted, That the Act approved October 18th, 1870, incorporating said Town of Geneva be, and the same is, hereby repealed.
"Sec. 14. Be it further enacted, That all laws and parts of laws in conflict with this Act be, and the same are, hereby repealed.
"Approved August 18, 1913."
MUNICIPAL CORPORATIONS-Home Rule (Unofficial) The provisions with reference to Home Rule are contained in Constitution, Sec. 1, Art. 15 and in Ga. L. 1947, pp. 1118-1130.
January 30, 1~48 Hon. W. G. Brisendine
I am pleased to acknowledge receipt of your letter of January 23rd, in which you state that the City Council of Fort Valley passed a unanimous resolution to call an election for the purpose of voting on Home Rule. You desire
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that I mail you any available information concerning the Home Rule Law which we may have, in order tha'.; the same may be distributed to persons interested.
I regret very much that my office- does not have any information on this subject, other than of course the law relating to the matter. As you know, the Home Rule provision is set forth in Section 1, Article 15 of the Constitution, and the statutory laws enacted in pursuance thereof will be found in Georgia Laws of 1947, pages 1118 to 1130.
If you have any specific legal question relating to this matter I will be delighted to give you any aid or information that I can upon the same. I regret that we do not have these laws in pamphlet form, but feel sure that you can have access to them in the law library at the county courthouse.
MUNICIPAL CORPORATIONS-Hospitals (Unofficial) 1. A Municipality or other political subdivision of the State may work with one or more like subdivisions through a single joint hospital authority. 2. One such subdivision may not bind another by appointing a resident of the latter to the joint board.
January 15, 1948
Hon. Geo. H. Scott President Rockmart Junior Chamber of Commerce
I have your letter of January 12th in which you request my opinion on two questions, as follows:
1. May there be a hospital authority jointly representing two towns or communities?
2. Has the mayor of Rockmart the authority to appoint a non-resident of Rockmart to a joint Rockmart-Aragon Hospital authority?
As to question 1: The Constitution of the State of Georgia, 1945, provides in Code Section 2-5901 (a),
"The State, state institutions, any citq, town, municipality or county of this State may contract for any period not E:'Xceeding 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."
Further the Code section on the creation of Hospital authorities, Ga. Code, Annotated, 1945 Cumulative Pocket Part, Section 99-1503, provides in part:
".... Any two or more cities or counties, towns or municipalities, by a like resolution by their respective governing bodies, may authorize the exercise of the powers herein provided for by an authority with respect to which the arE:oa of operation shall be confined to such participating units."
It is, .therefore, my opinion that cities and counties may work through a single joint hospital authority.
As- to. question 2: Since Aragon is a separate incorporated city, the Mayor
of Rockmart would not seem t:O have authority to appoint a resident of Aragon
on the joint Board, nor would such an appointment validly bind the City of
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Aragon to participatE> in the joint Board. The City of Aragon through its proper officials would seem to be the
correct agency for contracting with Rockmart to form a joint Hospital authority. Please be advised that the Attorney General is prohibited by law from
rendering official opinions to anyone except the Governor and the heads of the various State Departments; therefore the above information is strictly personal and unofficial and not binding on any one.
MUNICIPAL CORPORATIONS-Mayor (Unofficial) Mayor pro tern. elE;cted by City Council to fill vacancy caused by Mayor's death has full power of Mayor during balance of term.
February 16, 1948
Honorable T. J. Syfan
City Attorney
This will acknowledge receipt of your letter of February lOth in which you
state, that due to the death of the Mayor of the City of Commerce the city is
now operating under the direction of a Mayor pro tern elected by the City
Council subsequE:nt to the death of the Mayor.
You request an unofficial opinion as to the method of filling the vacancy
of the Mayor under the present Charter, and whether or not you have th,e
authority to call an election to fill the vacancy under the General Welfare
Clause of your City Charter; also, the lE;gality of the acts of the Mayor pro tern
and Council.
Section 7, Georgia Laws of 1909, page 660, of the Charter of the City of
Commerce provides:
"The Mayor pro tern shall be clothed with all the rights, privilE;ges and
powers and shall perform all the duties of the Mayor-elect during the sickness
or absence from the City of the Mayor, the Mayor pro tern first taking the usual
oath administered to the Mayor and not otherwise.''
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I have checkE;d all amending Acts to the City Charter as set out in your
letter, and I find no provision of law providing for the filling of the vacancy of
the office of Mayor other than the method set out in Section 7 as above quoted.
The legal right of the Mayor pro tern to act in a situation other than sick-
ness of the Mayor depends entirely upon the interpretation of the word
"absence" as used in the Charter.
There are numerous cases in which the word "absence" has beE;n defined.
In this connection I direct your attention to the case of Watkins vs. Mooney,
114 Ky. 646.
The Court in this case discusses numerous cases from various jurisdictions
in which the word "absence" is defined, and, at pagE: 654 of the opinion; in
giving its interpretation to the word "absence" says:
"We think the soundest reasoning under the authorities cited and examined
give the word 'absence' the mean'ng of that absence which would make it
impossible for the official to perform the act in question."
It is a difficult task, if not an almost impossible one, to lay down a rule that
could apply to all cases defining the meaning of the word "absence''. Therefore,
it is necessary to place an interpretation upon the word "absence" that will
most nearly reflect the legislative intent.
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Applying the definition of the Kentucky Supreme Court to the :word "absence" as used in Section 7 of your City Charter, and I subscribe toi this interpretation, there being no Georgia case to the contrary, I ain of the opinion that the Mayor pro tern, under the circ*mstances meritioned in your letter, has the full power and authority to perform the acts of Mayor for the remainder of the deceased Mayor's term, and until the Mayor's successor is elected and qualified.
You must understand, of course, that I am prohibited by law from rc,ndering an official opinion except upon request of the Governor or the heads of the respective State Departm:,ents, and the subject matter must then deal with State affairs. Therefore, the statements in this letter are my own personal opinion and .binding upon no one, and are furnished to you with the hope that I might be of some help.
MUNICIPAL CORPORATIONS-Officers-Bonds The bond of the City-Collector-Paymaster-Ex Officio City Sheriff of Augusta should be issued in favor of the City Council.
March 1, 1948 Mr. James R. Hall, Jr. Manager, Insurance Department Blanchard & .Calhoun Realty Company
will This acknowledge receipt of your letter of February 4th in which you
requested the following information: Whether or not it would be proper to furnish a bond to the Goyernor
covering Mr. W. H. Bagby, City Collector and Paymaster and ex-officio city
sh~;riff?
Please be advised that the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the heads of the various State Departments; therefore this is to be considered as a strictly personal and unofficial opinion and not binding on anyone.
The City Charter of Augusta, Ga. Laws 1947, page 349, Section 3, provides in part as follows:
"There shall be a city collector appointed and removed by the city manager as provided in Se.ction 4 of Chapter V of this Act .... He shall be ex officio city sheriff .... Before entering upon the duties of his office he shall give a surety bond in favor of the city council in the sum to be fixed by the council conditioned upon the faithful performance of his duties as collector and sheriff. His fees as sheriff and the method of thc, performance of his duties as such shall be prescribed by ordinance. . . . . The position of city sheriff as a separate office is hereby abolished."
From the above it is clearly stated that he should "give a surety bond in favor of the city council" and further that the amount of the bond is "to be fixed by the council''. Therefore, it is my opinion that a bond should be furnished in favor of th& City Council covering the City Collector, Paymaster and ex-officio city sheriff, as provided for in the above referred to Act.
There is nothing in the Act which would indicate a necessity for furnishing ~ Statutory Bond in favor of the Governor of Georgia upon this city official appointed by the City Council.
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MUNICIPAL CORPORATIONS-Revenu& Anticipation Certificates (Unofficial) The provisions as to issuance of revenue anticipation certificatE:s are found in Georgia Code, 1933, Pocket Supplement, Ch. 87-8, Part III, pp. 28-37.
January 12, 1948 Honorable C. W. Mason
I beg to acknowledge receipt of your letter of January 3, 1938, in which you inquire as to the issuance of revenue anticipation certificatE:s for the purpose .of improvements as to sanitation, etc., in the City of Madison.
Replying thereto I beg to state that you will find the laws in regard to the issuance of revenue anticipation certificates in the Cumulative Pocket Part of the Annotated Gode of Georgia of 1933, in Chapter 87-8 in Part III on pages 28 to 37, inclusive.
I fail to find any genE:ral or special law passed in the 1947 General Assembly in regard thereto.
You will understand that this inf-ormation is strictly personal and unofficial.
MUNICIPAL CORPORATIONS-Taxation A municipal corporation may levy taxes for the construction of an airport under its general taxing powers.
January 9, 1948 Mr. W. E. Pool
Your letter of December 29, 1'947, addressed to Mr. Eugene Cook, has been referred to me for reply.
As you probably know, the Attorney General is not permitted to render official opinions to anyone other than the heads of the executive departments of the State. However, acting in his behalf, I am glad to give you my personal and unofficial opinion in reply to the questions presented in your letter.
You ask: "Is there a law in the City of Winder, Ge.orgia to collect airport tax to build airport three miles outside the City of WindE:r without the taxpayer voting either for bonds or direct taxation?"
The Georgia Code, Chapter 11-2, sets out the Uniform Airports Law. This act was passed in 1933 by the Legislature and has only been amended as to minor detail since. This law provides that municipalitiE:s may "acquire, establish, construct, expand, own, lease, control, equip, improve, maintain, operate, regulate, and police airports." It further provides that municipal authorities "are hereby authol'ized to appropriate and cause to be raised by taxation or otherwise" money sufficient to establish and maintain airports. This law further provides that this money may be raised by taxation in accordance with the general provisions of the law governing the right of cities to issue bonds, levy taxes and the like. As the law is too lengthy for me to furnish you a complete copy, I would suggest that you inquire at the Courthouse, City Hall, or office of some local attorney if you desire to read the entire law on the subject.
The case of Mayor an.d Ald,ermen of Savann,ah vs. Lyons, 54 Ga. App. 661, 665, referred to the Uniform Airport Law and held that acquisition and operation of an airport was a proper governmental function. This would indicate that an airport could be built or maintained by the city from funds derived by taxation for genE:ral governmental purposes.
I have referred to the charter of the City of Winder, Georgia Laws 1917,
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page 926, and subsequent amendments and find that the charter provides for a specific levy of ad valorem taxes for general governmental purposes, and I am of the opinion that unless I have overlooked some important point that the City of Winder is justified in levying a tax, the funds of which are used for the operation or maintenance of an airport.
MUNICIPAL CORPORATIONS-Taxation (Unofficial) An ordinance imposing a tax upon agents selling products in interstate commerce, without restrictions in view of the public health, is violative of the Unittd States Constitution.
June 23, 1948 Mr. J os. C. Brown
I am pleased to acknowledge your letter of June 19, 1948 in which you request my opinion relative to municipalities taxing agents who are selling products in interstate commerce.
As you know, the Attorney Gemeralis prohibited by law from giving official opinions to anyone exctpt the Governor and the various State departments heads; therefore, this information is of a personal nature and is not binding on anyone.
Cities and towns in Georgia are governed by charters which are granted by the General Assembly. To determine the powers, privileges, rtstrictions, etc. of the municipal corporations, it is necessary to consult the individual charters of each city or town.
The court of Appeals in the case of Loh vs. Mayor and Council of Macon, 8 Ga. App. 744, stated that a municipal ordinance imposing a license tax upon agents of non-resident corporations which manufacture for sale an article of commerce, but without imposing any supervision, regulation, or restriction upon such sale in aid of the public health, public peace, or public morality, places a burden upon interstate commerce, and is in violation of the constitution of the United States.
NOTARIES PUBLIC-Powers (Unofficial) 1. Powers of notaries and commissioners of deeds. 2. Persons authorized to administer oaths.
January 15, 1947 .Honorable Paul L. Styles Regional Director Tenth Region National Labor Relations Board
Please accept my apologies for the delay in answering your inquiry of December 31st. This Department had elevtn cases in which briefs had to be prepared for the Supreme Court calendar early this week, and some of our correspondence has consequently been dtlayed.
The 1947 General Assembly passed an act.repealing the former statutes concerning Notaries Public, and abolished the distinction between commtrcial Notaries and Notaries for the State at Large. The Act provides (1947 Georgia Laws, pages 1108):
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"Notarial acts may be exercised in any county in the State of Georgia." The powers of all notaries unde,r the new Act are: "1. To take the acknowledgments of all writings relating to commerce or navigation and to witness such deeds and papers as they are permitted to by law. "2. To demand acceptance and payment of all commercial paper and to note and protest the same for non-acceptance or non-payment. "3. To certify to all official acts when required. "4. To administer oaths in all matters incidental to their duties as commercial officers, and all other oaths which are not by law required to be administered by a particular officer. "5. To e,xercise all other powers incumbent upon them by commercial usage or the laws of this State." The act also provides that all commercial Notaries and Notaries for the State at Large may continue in office until expiration of the term under the provisions of the new Act. Under Chapter 71-3, Georgia Code of 1933, the Governor may appoint Commissioners in other States and Territories of the Unite,d States who have power "to take and certify the acknowledgment or proof of deeds or other conveyances of property in this State, of depositions under commissions or otherwise, of powers of attorney, of wills executed by persons devising or bequeathing prope,rty within the State, and of other instruments in writing required to be attested under the laws of this State.'' Under an Act passed in 1943, and amended in 1945 (Georgia Code, Chapter 71-4), all commissioned officers of all branches of the armed services of the United States with the rank of second lieute,nant or higher in the Army or Marine Corps, or with the rank of ensign or higher in the Navy or Coast Guard, or with equivalent rank in any other branch, are made ex-officio notaries public of the State of Georgia, and may perform notarial acts and administer oaths to any person who is a member of the armed forces of the United States, or is serving as a merchant seaman outside the limits of the United &tates proper, or is outside the limits of territorial United States by permission, assignment or direction of any department or official of the United States Government in connection with any activity perta.ning to the prosecution of any war in which the United 'States is or may be engaged. As to your inquiry concerning which officials, other than notaries public are empowered to administer oaths on Federal Government docume,nts, I think this is a matter which would be conti'olled by federal law. In Georgia, there are a number of differing procedures under which offictrs other than notaries may administer oaths-for instance, a Sheriff or Deputy may administer an oath in the taking of a bond-but we do not have a compilation of these Acts. I should imagine the general rule would apply to federal documents, as to documents witnessed by officials of other States, name,ly that an official signature is presumed to be valid and is prima facie evidence of the power of the official to administer the oath. However, as to the federal question, I would suggest you
communicate with the United States Attorney.
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PARENT AND CHILD-Adoption (Unofficial) Adoption of foreign-born child by Georgia residents must conform to all Georgia n:quirements.
June 14, 1948 Mrs. Joseph H. Norman American Red Cross Bamburg Mil. Sub-post
Reference is made to your letter of April 30, 1948, asking for information as to the adoption of children as provided by the laws of the State of Georgia.
The State laws pertaining to the adoption of childrf:n make no reference at all to the adoption of infants born in foreign countries. I am satisfied that should a child born in a foreign country or foreign jurisdiction be adopted by legal residents of Georgia, that the local laws regarding notice, hearings, and the obtaining of the required consent of the parf:nts would be applicable. Of course all proceedings undertaken must be in the Gtorgia courts, and it is nf:cessary for the adopting parents to appear personally at the time of the interlocutory hearing. If you are able to make such an appearance, I see no reason why you should not be able to adopt a German child. However, until you are able to make a personal appearance in this jurisdiction and in thE> proper court, I do not believe that you could properly instigate adoption proceedings.
Since perhaps you may not know the law of this State, I must reply that the Attorney General is precluded by law from rendering opinions upon legal matters to parties other than the officials of the State Government. Accordingly, I am unablt to fully give you the information which you desire, and such information as I have given you is to be taken as confidenti~l and merely for such personal use as you may desire. It has no effect of an adjudication, nor is it a positive statement of law. I would suggest that yorl contact an Attorney of your choice in the County of your residence. If you are unacquainted with attorneys here, I shall be delighted to furnish you with the names of some, of them upon your specific request.
PARENT AND CHILD-Adoptio,n 1. The names and addresses of natural parents may be omitted from the adoption petition where unknown to petitioner or where both parents are dead. 2. The names and addresses of natural parents need not be stated in the report to the Department of Public Wtlfare.
July 23, 1948 Honorable W. E. Ireland, Director State Department of Public Welfare
I have your letter of July 19, in which you request my opinion on the following questions:
1. When pf:rsons petition for the adoption of children under the provisions of Title 74, Chapter 4 of the Code, is it necessary for the petition to include the names and addresses of the natural parents of the, child to be adopted? If not, under what circ*mstances may this information be omitted?
2. In the report required of the Department of Public Welfare, is it neces-
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sary that the names and addresses of the natural parents of the child to be adopted be stated?
In answer to question 1, I call your attention to Georgia Code Annotated, Section 74-407, which provides that the petition of the persons seeking to adopt a child "shall set forth ... whether the child has one or both plarents living, and in case one or both are alive, their names and places of residence, unless unknown."
This Section affirmatively requires that the names and places of residence of the parents be included in the petition. However, the Section states two exceptions to this general requirement. The names and addresses of the natural parents need not be stated in the following situations:
a. When both of the natural parents are deceased. b. When the names and places of residence are unknown to the petitioners. Code Section 74-407 and Code Section 74-403 together require that the written consent of the living natural parents be made a part of the petition. It will of course be improbable that the names of the natural parents could remain "unknown" to the petitioners if this written consent is a part of their petition. The requirement of written consent of the natural parents as laid down in Code Section 74-403 is inoperative when "otherwise specified in" the Sections following 74-403. These exceptions are found in Georgia Code Annotated, SE:ction 74-404, which provides as follows: "Consent of the parents shall not be required whE:re a child has been abandoned by its parents, or where the parents of the child cannot be found, after a diligent search has been made, or where a parE:nt is insane or otherwise incapacitated from giving such consent, and the court is of the opinion that the adoption is for the best interest of the child, or wherE:' the parents have SUII'rendered all of their rights to said child to a licensed child-placing agency, or court of competent jurisdiction for adoption, or to the State Department of Public Welfare through its designated agents, or in the case of parents whose parental rights have bE:en terminated by order of a juvenile or other court of competent jurisdiction, or where both parents are dead." When under the provisions of the above quoted Section the consent of the parents is not required, I see no reason for the petitioners to be made cognizant of the names and addrE:sses of the natural parents by the court order or other document indicating that one of the exceptions is applicable. Further, when the consent is given by a guardian or by the State Department of Public Wie:l:fare, .or by a child-placing agency; or by any proper agency other than the natural parents, there is no requirE:ment in the law that such consent state the names of the natural parents. It is my opinion that if the names of the natural parents .are not stated in such consent so as to reveal this information to the petitioners, and if the petitioners are actually unaware of the names of the natural parents, the petitionE:rs may properly state in their petition that the information is "unknown."
The provisions as to consent are discussed in this opinion solely to clarify the point that if such a consent states the names of the natural parents and is .a part of the petition, it would be extremely questionablE: for the petitioners to allege that the names of the natural parents are "unknown.''
As to question 2, the statutory provisions under which the Department of Public Welfare or other agency is required to investigate and report on the .allegations in the petition for adoption are Georgia Code Annotated Sections
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74-410 and 74-411. There is no requirement in either of these Sections that the names of the natural parents be disclosed and I am quite definitely of the opinion that in the absence of such an affirmative requirement, the information need not be disclose:d in the report.
Your request for this opinion has been referred to me in the absence of Mr. Cook.
PARENT AND CHILD-Control (Unofficia~l) A boy 18 years of age is a minor and is still under parental control.
January 8, 1947
Hon. J. W. Storey Clerk, Superior Court
I beg to acknowledge receipt of your lette:r of December 20th in which you inquire as to whether or not a boy of 18 years of age has reached his maJority and is no longer under parental control.
Your letter was received during the holidays, hence the delay in replying thereto.
I wish to state that the Attorney General is not permitted to render opinions to anyone except the: Governor or the heads of the various departments of the State, and even then the opinion must be on some matter in which the State is interested. Any information given in this letter, therefore, must be considere:d as unofficial and as binding upon no one.
In answer to your inquiry I beg to advise that Section 74-104 of the Annotated Code of Georgia of 1933 reads as follows:
"The age of legal majority in this State is 21 years; until that age iall persons are minors."
Section 74-105 of said Code reads as follows: "Until majority, it is the duty of the father to provide for the maintenance, prote:ction, and education of his child." Section 74-108 of the Code reads as follows: "Until majority, the child shall remain under the control of the father, who is entitled to his services and the proceeds of his labor. This parental power shall be lost by: 1. Voluntary contract, releasing the right to a third person. 2. Consenting to the adoption of the child by a third person. 3. Failure of the father to provide necessaries for his child, or his abandonment of his family. 4. Consent of father to the child's receiving the proceeds of his own labor, which conse:nt shall be revocable at any time. 5. Consent to the marriage of the child, who thus assumes inconsistent responsibilities. 6. Cruel treatment of the child." You will note that under these Sections of the Code that a child is still a minor until he reaches the age of 21 years, unless the parental power is lost as above set forth. The mere fact that the Constitution of Georgia allows persons who reach the age of 18 years to vote does not change his leg1al status, but is a mere privilege. A person does not become sui juris until he re:aches the age of 21 years.
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PENAL INSTITUTIONS-Capital Punishment The person designated to electrocute prisoners need not be a resident of Georgia.
Jul_y 14, 1948 Honorable C. A. Williams, Director State Board of Corrections
This is to acknowledge your inquiry of July 8, 1948, whidh presents the question as to whether the electrician who has been used for several years at the Georgia State Prison in electrocution, but who has recently changed his residence to the State of South Carolina, would be competent to continue to serve in such capacity.
By Section 27-2515, Georgia Code. Annotated, it is to be seen that the law prescribes that "There shall be present . . . the warden of the p1nitentiary, who shall serve as executioner, .. an electrician, ..."
As observed in the portion of the Code Section quoted, no reference is made to the residence of the electrician. The indefinite article "an" is used. It is therefore my opinion that the fact of the place of residence of the electrician used in electrocutions is immaterial under the law and, accordingly, that you may continue to use the person of your choice for this function.
PENAL INSTITUTIONS-Custody of Prisoners The State Board of Corrections may take custody of an escaped prisoner upon his return to the State despite his release under habeas corpus by a foreign court from custody assumed under extradition warrant.
April 22, 1948 Honorable Charles A. Williams, Director State Board of Corrections
This is to acknowledge receipt of your letter .of April 13, 1948, wherein you request an official opinion as to the power of the State Board of Corrections to take custody of an escaped prisoner where the said prisoner had been arrested in a foreign state under an extradition warrant and released therefrom under a writ of habeas corpus by a court Of the foreign state.
It appears that subsequent to the escape of the prisoner, whose status is in question, that the prisoner was arrested by a sheriff o:e this State for the theft of an automobile, but was released by that official to the United States Marshal for the Northern District of Georgia.
In considering the question raised by you, it is unnecessary to. discuss or consider the validity of the judgment of the court of the foreign state in sustaining the wr:t of habeas corpus for the reason that such judgment cannot in any way affect the penal laws of this State. It is a recognized principle in the field of conflict of laws that jurisdiction in criminal matters rests solely in the courts of the state in which the crime is committed, and that the laws of each state wherein the crime is committed exclusively govHn the nature of the offense. It is also true that the penal laws oil one state are not to be enforced extra-territorially. See the case of Huntington v. Atrill, 146 U. S. 657, 36 Lawyers' Edition 1123.
It is to be observed that the question of the penalties to be charged against an escaped prisoner of the state are controlled by this state's penal statutes. It
is also to be noted that the question of the tolling of a prisoner's tim6 wlhile being a refugee frow the custody of this State are in the nature of penal laws, and thus ex~lusi~~ly within the authority and jurisdiction of the proper courts and agencies of this State.
By Code Section 26-4509, Georgia Code of 1933, Annotated, it is specifically provided that the escaping of a prisoner from a penitentiary is made a crime. This Code Section in part provides as follows:
HAny person confined in the penitentiary who shall escape therefrom, and shaH be, thereafter retaken, shall be indicted for an e:scape, and, on conviction, shall be punished by imprisonment and labor in the penitentiary for not less than three months nor more than four years; ..."
The Supreme Court of Georgia in the case of Hart v. Man.gum, 146 Ga. 497, a case dir6ctly in point with the facts as outlined in your letter, specifically held that where a sheriff of one state having custody of a prisoner W1anted hy that state under a charge of escape did not waive the right of that state to arrest the prisoner and have him returned by first surrendering the prisoner to Federal authorities.
Under the facts as outlined in your letter as applying to the general concepts of the fiE:ld of conflict of laws, and by virtue of the direct authO!l'ity 10f the Supreme Court of this State, it is my opinion that the Board of Corrections would have authority to take custody of the prisoner in question should he return within the territorial limits of the State of Georgia.
I desire to point out that I have limited my opinion in this matter precisely to the point raised by you, i.e., under the facts as stated, would the State Board of Corrections have authority to take custody of an escaped prisoner upon his return to Georgia even though the said prisoner had been released under a writ of habeas corpus by a court of a foreign state from custody assumed under the authority of an extradition warrant. My answer and opinion is that the said Board would have that authority.
PENAL INSTITUTIONS-Custody of Prisoners A prisoner serving an indeterminate sentence may, upon completing his minimum sentence, be permitted to complete his term outside the penitentiary.
July 16, 1948 I{on. W. C. Row!and, Warden Colquitt County PWC
This will acknowledge your request for a ruling on the "sentence to be served by an inmate of Georgia on an intermediatE: sentence.'' I am of the opinion that you have in mind, "indeterminate sentence for felonies not punishable. by life imprisonment."
Under the Constitution and laws of this State, the Attorney General can advise only the Governor and heads of the various State departments, but I am delighted to give you herewith my unofficial opinion, which, you understand, is binding upon no one.
Code Section 27-2502 of the Georgia Code of 1933 provides as follows: "The jury in their verdict on the trial of all cases of felony not punishable by life imprisonment .shall prescribe a minimu_m and maximum term, which shall
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b.e .within th~:; minimum and maximum pref\!~ribed by law as the punishment for said crime, and the judge in imposing the sentence shall commit said convicted persqp. to the penitentiary in accordance with the verdict of the jury. The Prison Commission shall fix rules by which said convict, after serving the minimum sent~nce, may be allowf:d to complete his term without the confines of the penitentiary upon complying with said rules."
PENAL INSTITUTIONS-Custody of Prisoners (Unoffidal) Minors are committed to the 'State Penitentiary, except for offenses punishable by death and life impriso:hment, only in cases of male persons who, having been committed to the training school, prove uncontrollable or unsuited to benf:fit by opportunities offered.
July 26, 1948 Mrs. Thelma Wood, County Director Department of Public Welfare
Your letter of July 21, 1948, addressed to the Attorney General, is answered by the writer in the absence of Mr. Cook who is out of the State on official business.
You make inquiry as to the Georgia law pertaining to minors being committed to the penitentiary in our State. This question is not one upon which the Attorney General is authorized to render an official opinion. He is only authorized to render official opinions to the Governor and thf: heads of the State's departments on matters concerning the State. However, we are always glad to give our personal views with the understanding that they are not binding upon anyone.
Section 77-704 of the 1933 Code of Georgia provides:
"The judges of the city and superior courts may in their discretion commit to the Georgia Training School for Girls any girl under 18 years of age who has committed any offense against the laws of this State, not punishable by death or life imprisonment, or who habitually associates with vicious or immoral people, or who is incorrigible to such an extent that she cannot be controlled by parent or guardian, there to be held until such girl reaches the age .of 21, unless sooner discharged, bound out, or paroled under the rules and regulations of said Board of Control: Provided, however, that no girl who is insane or an idiot or who comes under the classif.c:Lion of mental defectives as defined in section 35-303, or who is afflicted with an incurable disease, shall be sentenced or committed to said institution. The judges of the eity and superior courts may hear and determine such cases, presiding in a court or in chambers: Provided, that any girl brought before a court shall have a right to demand trial by jury, and may appeal from the judgment of said court as provided by law. The fees allowed by law for carrying persons to the penitentiary shall be allowed to the sheriffs of the various counties, for services in taking such girls as may be committed by the several courts to the Georgia Training Schc>oJfor Girls."
Section 77-602 of the 1933 Code of Georgia (1947 Supplement) provides: "All male persons between 16 and 18 years of age, who have been duly convicted in any of the courts of this State of crimes not punishable by death or imprisonment for life, may, in the discretion of the judge having jurisdiction, be committed to the Georgia State Training School for Boys, with a provision in
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said sentence providing that should the person being committed, in the discretion of the governing authorities of the Georgia State Training School for Boys, prove to be uncontrollable through ordinary means of discipline or who, by reason of his conduct or attitude, should be unsuited to benefit from the opportunities at the Georgia State Training School for Boys may be retransferred by the governing authorities of the Georgia State Trainin~ School for Boys to the State prison at Tattnall at which institution he shall be segregated from confirmed criminals there."
PENAL INSTITUTIONS-Custody of Prisoners The cost of returning a prison~::r who has escaped from the State Hospital for the Insane must be borne by the Department of Corrections.
July 29, 1948 H<morable J. B. Hatchett Assistant Director State Board of Corrections
I have your letter of July 20 in which you make inquiry as to the proper department to be charged for the expenses incident to returning prisoners who escape from the Milledgevillfi State Hospital.
As you know, prisoners suffering from mental disease are transferred to the criminal ward of the State Hospital for the Insane under the provisions of Georgia Code Annotated, Section 77-367, which provides as follows:
''The State Board of Corrections is authorized to transfer mentally diseased inmates from the Georgia State prisons or other institutions operating under its authority, to the criminal ward or facility of the State Hospital for the Insane at Milledgeville, Georgia: Provided the inmate is adjudged to be mentally diseased to such extent that his transfer is found to' be advisable by a board of examining. physicians created by executive order of the Governor."
It is my opinion. that the transfer of these persons does not remove them from the .classification of "prisoners'' and when such persons escape they are in the category of escaped prisoners. Therefore, it is my opinion that the Department o;f Corrections should bear the expense incident to returning them to the State Hospital at Milledgeville. . In the absence of the Attorney General, your letter has been referred to me for answer.
PENAL. INSTITUTIONS-Prison Camps '.!;'he cost of boring a well for a prison camp is payable by the State Board
, of Corrections as a necessary expense in connection with health and welfare of prisoners.
September 20, 1948 Honorable C. A. Williams Director of Corrections State Board of Corrections
This will acknowledge receipt of your letter dated August 20, 1948, in which you request my opinion as regards payment for the boring of a new well at a branch prison camp in Coffee County.
It would seem that this would co1ne under the general function of looking
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after the health and welfare of the prisoners and could be regarded as a neces-
sary expense in the exercise of such function.
The only other alternative in the present situation would be for the County
to pay for the new well. Looking at it from a landlord-tenant relationship, the
County would not be bound for payment - See Mayor and Crine v. Morehead,
executrix, 106 Ga. 434, where the Supreme Court said that had a building been
totally destroyed by fire, the landlord, unless otherwise stipulated, would not
have been bound to replace it. In this connection also see Gavan v. NorCII"osso~
117 Ga. 356.
I have been able to find no law, statutory or otherwise, which prohibits the
State from paying for reasonable improvements on realty not owned by the
State. Such expenditures are always subject, however, to budgetary approval
as required by law. I can readily see why that procedure should be followed in
cases more extreme than the one at hand. Even though that be true, in this
instance I am of the opinion that the welfare question is the controlling and
prime consideration, and if you feel that the general welfare of the prisoners
dem\ands that a new well be bored, and I feel sure that such is the case, then this
should be treated as a necessary operating expense.
"T I
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PENAL INSTITUTIONS-State Board of Corrections Costs in habeas corpus proceedings brought by prisoners may be paid by the Board of Corrections only if the outcome is in favor of the prisoner.
November 15, 1948
Honorable C. A. Wiilliams Director of Corrections State Board of Corrections
I have received your letter of October 27, 1948, in which you request my official opinion concerning the authorization of the State Board of Corrections to pay the court costs in habeas corpus proceedingS! brought by inmates of the State Prison at Tattnall against the Warden of the Prison.
In Chapter 77-3 of the 1933 Annotated Code of Georgia, I find nothing which specifically authorizes the State Board of Corrections to pay the court costs in a habeas corpus proceeding brought by an inmate of the State Prison. However, under the Constitution of this State, any inmate of the Prison has the right to seek a writ of habeas corpus and to have the Warden of the P~ison served as the defendant. If, therefore, such a petition is brought and the finding of the Court is ultimately in favor of the petitioner, that is, that the prisoner is being illegally detained, then in that event, certainly the prisoner would not be liable for the court costs; and even though there is no direct authority to pay the court costs in that instance, yet since the Warden of the Prison, an employee of the State Board of Corrections, is the defendant and the losing party, so to speak, I am of the opinion that the State Board of Corrections would be liable for the court costs and would be authorized to pay same.
However, on the other hand, if the findings of the court ultimately were that the prisoner was not being illegally detained and he was remanded to the custody of the Warden, then as the losing party, the prisoner would be liable for the court costs; but if he should have filed his petition in forma pauperis, then even though he was the loser, and as such responsible for the court costs
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at the conclusion of the proceedingS, there would be no way to enforce collection
against him. And further, in my opinion, in such event, the State Board of
Corrections would not be responsible for the court costs nor authorized to pay
same.
To determine, therefore, if you are authorized to pay the court costs for
the nineteen (19) habeas corpus procer,dings previously brought against the
Warden, it will be necessary for you to ascertain the outcome of the petitions in
each instance.
PENAL INSTITUTIONS-State Board of Corr~tions The State Board of Corrections may sell to other Departments of the State Governments supplies and materials producr,d by institutions under authority of the said Board.
January 23, 1948 Hon. C. A. Williams Director State Board of Corrections
I have your letter of January 13th in which you request my opm10n on Section 16 of the Act creating the State Board of Corrections (Ga. Laws 1946, page 46) which provides as follows:
"Section 16. The thr,ory of prison work shall be based on occupational and vocational training, and not on business conducted for profit or in competition with private enterprise and free labor. The provisions of this Section shall not apply to county public works camps and State Highway camps.
The Supervisor of Purchases and all Departmr,nts of the State Government shall purchase from the State Board of Corrections such supplies and materials as may be produced by the different institutions under the authority of the Board. The use of free labor in the production and manufacture of such supplies and materials shall be limitr,d to supervision only."
You wish to know if the Board is authorized to sell products produced with prison labor to other Departments of the State Government.
The Section in question has not been construed by the Appellate Courts of Georgia and I therefore base my opinion on thr,' general rules of statutory construction and interpretation. As you have pointed out, one .of the primary rules is that statutes will be so construed as to implement the intention of the Legislature.
With this rule in mind, I am quite definitely of the opinion that the Board of Corrections is authorized to sell other Departments of the State government any products produced by prison labor in a program of occupational and vocational training.
Such authority is expressed in the second paragraph of the section quoted. It is my opinion that the provisions of the first paragraph of the section are directive rather than mandatory; however, I do not believe that there is any conflict between the two sections in so far as the instant question is concerned. Sale of goods produced by one department of the government to another department of the government is not in my opinion competitive sale, for the reason that all departments of the State government are ultimately the agents of that single, sovereign power created by the Federal and State Constitutions, which is called "The State".
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However diverse and separated thfo' various agencies of the sovereign may become, ,they' are all ultimately based and dependent upon the authority of this single sovereign power. Transactions between two such agencies are not to be considered as transactions between competitive businesses in the open market.
With these principles in mind, it is my opinion that you are clearly authorized. to sell the material products of your program to other State departments.
PENAL INSTITUTIONS-Term A prisoner's sentence is credited with time intervening between the original sentence and granting of motion for new trial.
March 29, 1948 Honorable C. A. Williams, Director State Board of Corrections
This will acknowledge your letter of March 22, 1948 in which you request that I advise you whether or not a person can be legally credited with time served from the date of his sentence and the time he files a motion for a new trial.
Section 27-2505 of the 1933 Annotated Code provides the time from which sentences run. This Code Section is as follows:
"27~2505. Time from which sentences run.-It shall be the duty of the several judges, in the imposition of sentence for violation of the penal laws, to specify that the term of service under such sentence shall be computed as from the date of sentence, provided the defendant is confined in jail or otherwise incarcerated, and has no appeal or motion for new trial pending, except in such cases as may be appealed to the State Court of Appeals or the Supreme Court for reversal of the conviction, in which event the sentence shall be computed from the date the remittitur of the appellate court is made the judgment of the court in which the conviction is had, provided the defendant is not at liberty under bond but is incarcerated or in custody of the sheriff of the county where convicted. (Acts 1931, p. 165.)"
The Supreme Court of Georgia in the case of Aldridge vs. Potts, 187 Ga. 291, said that before the Act of 1931 (Ga. L. 1931, p. 165), now Section 27-2505, sentences did not begin to run until the defendant was actually delivered to the penitentiary or chain gang, and no credit was received for the time which may have been previously spent by such defendant in jail. The Supreme Court in this case also said that Section 27-2505 sought to remedy evil of rule under which sentences did not begin to run until defendant was actually delivered to the penitentiary or chain gang, and no credit was received for the time which may have been previously spent by such defendant in jail.
If the facts are true that the person under consideration was sentenced by the Court on January 23, 1946 and was held or imprisoned in jail, or in the county Public Works Camp, until a motion for a new trial was filed and granted on March 28, 1946, at which time he was released on an appeal bond, it is my opinion that he would be entitled to be credited with the period of time from .January 23, 1946 until March 28, 1946 as he would have been serving his sentence during this period within the purview of Section 27-2505.
You will note that Section 27-2505 does not allow the period of time when a motion for a new trial is pending to be counted as serving a sentence.
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PENSIONS-Blind and Old Age (Unofficial) Residence is a prerequisite to obtaining pensions under the Blind and Old Age Pension Act.
July 26, 1948 Hon. Fred C. Jacobs Attorney at Law
In the absence of Attorney General Eugene Cook from the office, I am taking the liberty of replying to your lE,tter of July 21st in which you request information relating to certain benefits under the Blind and Old Age Pension Act of the State of Georgia. You state that the person in question is a veteran, but is not presently a resident of this State. It is my understanding that residence would be a condition precedent before benefits could be obtained in this State. I am not familiar with the Blind Pension Act which you refer to in your letter, but I would suggest that if you have any further question in reference to this matter that you write directly to Hon. William Ireland, Director of the Department of Welfare, State Office Building, Atlanta, Georgia. I believe from your letter that you have already communicated with Mr. Arthur Cheatham, Director of the State Department of Veterans Administration.
PENSIONS-Ex-Confederate Soldiers and Sailor (Unofficial) A sworn application of the beneficiary, accompanied by the Ordinary's certificate showing continued residence of the applicant, is a prerequisite to the payment of Confederate pensions.
August 16, 1948 Miss Bertie B. Stembridge, Ordinary Baldwin County
In Re: Mrs. Lula S. Wright I am pleased to acknowledge your letter of August 9th, in which you state there has been some confusion or misunderstanding in reference to the above named pensioner who has been certified by you on the roll of Baldwin County Pensioners. Section 78-217 of the Code provides: "After an applicant has been EOnrolled as a pensioner, subsequent payments shall be made upon sworn application of the beneficiary, accompanied by the certificate of the ordinary, of his county, showing continued residence in this State." Miss Lillian Henderson, Director of the DEOpartment of Confederate Pensions and Records, has an affidavit from Mrs. Lula S. Wright in which she states that she has always retained her residence in this State, and she gives an explanation of her absence for a rather lengthy period of time from Georgia. This affidavit, together with your certification as Ordinary of Baldwin County, appears to be sufficient proof of the eligibility of the applicant in reference to her continued residence in this State. Miss Henderson was in my office Friday and states that M,rs. Wright's name has been returned to the pension roll. I understand that Mrs. Wright prefers to remain on the pension roll rather than enter her application for admission to the Confederate Home.
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PENSIONS-Ex-Confederate Soldiers and Sailors Eligibility for pension and admission to the Confederate Home presupposes residence at the time of the passage of the 1937 Act.
Decromber 20, 1948 Miss Lillian Henderson Director, Department of Confederate Pensions and Records
I have been requested to review the file in the subject case pursuant to an application filed by Mrs. Laura W. Wilson for enrollment on the Confederate Pension Roll and, subsequently, admission to the Confederate Soldiers' Home.
Upon reviewing this file, I find that her application previously filed with you was rejected for good reasons in that it appears that the applicant had previously filed an application for enrollment in the State of Alabama arid iii support of the same, had sworn under proper oath that she was at that time1945-a rrosident of the State of Alabama.
Under the Georgia law, the record is supposed to establish the fact that she was a resident of the State of Georgia at the time of the passage of our 1937 Act. In the face of her affidavit filed with the Alabama authorities to the effect that she had broen a resident of the State of Alabama all of her life, certainly the rejection of her application was justified.
On the other hand, it is contended by her at the present time and by parties who are interested in Mrs. Wilson's application that she was not a resident of Alabama at the time she made the affidavit but had been a resident of the State of Georgia for a period of twenty odd years.
There are some indications in the file which might have established her residence in Georgia for certain purposes in 1937 but these factors are not conclusive. On the other hand, if Mrs. Wilson and anyone else interested in her application will swear under proper oath that her affidavit used in the Alabama case was erroneous and that she was in fact a resident of Georgia at the time of the passage of the 1937 Act, you would be authorized to approve her application for enrollmront and, subsequently, admission to the Confederate Soldiers' Home.
PERSONS-Aliens CORPORATIONS-Foreign-Powers (Unofficial)
1. Aliens whose governments are at peace with the United States and with the State have all the rights of citizens of other States resident in this State. 2. Corporations creatr,d by other governments are recognized by Georgia courts only by comity, may not exercise powers denied by this State to Georgia corporations, and are restricted as to ownership of realty.
December 13, 1948 Honorable Jack B. Tate Acting Legal Adviser Office of The Secretary of State
Your lettr,r of November 22, 1948, addressed to the Governor of Georgia, has been referred to this Department. In your letter you request information as to the rights of aliens with respect to real and personal property under the laws of the various States, including corporations created or organized under
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the laws of foreign countries, to acquire .real and personal property by lease, purchase, inheritance, succession, or otherwise.
Code Section 22-1501, of the 1933 Code of Georgia Annotated, reads as follows:
"Corpdrations created by other States or foreign Governments shall be recognized in the courts of this State only by comity, and so long as the same comity is extended in the courts of such other States or foreign Governments tc. corporations created by this State."
Code Section 22-1502 provides:
"No foreign. corporation shall exercise within this State any corporate powers. or privileges which by the Constitution or laws of Georgia are denied or prohibited to corporations created by this State, or the; exercise of which is contrl!;crY to the public policy of this State, anything in the charter or corporate powers of the foreign corporation to the contrary notwithstanding."
Code Section 22-1504 provides:
"Any foreign corporation claiming to own lands in this State in quantity amounting to as much as 5,000 acres, shall be incorporated by the laws qf this State; and on its failing to do so, the State will not consent to the said corporatiorr owning said lands so located in her territory. Any foreign corporation which shall thereafter claim to own land in this State in quantity amounting to 5,000 acres or upwards, shall become incorporated by the laws of this State, and in default thereof this State will not consent that said foreign corporation shall own said lands in her territory; and no foreign corporation shall own more than 5,000 acres of land except upon the condition of becoming a corporation under the laws of this State: Provided, that this section shall not apply to any foreign corporation engaged in the business of lending money on real estate security, nor to any such corporation holding a lien upon real estate to secure the payment of any debt, when said corporation, in ordf:r to prevent loss, is compelled to become the purchaser of lands covered by deed or mortgage to secure a loan: and Provided, however, that the benefits and privileges of the; foregoing proviso shall not apply to any foreign corporation which does or may lend money in this State at a great:r rate of interest than eight per cent. per annum. In estimating the amount of interest charged, there shall be included any and all commissions or fees which may be paid to said company or its duly authorized agents."
The above laws pertain to foreign corporations.
Code Section 79-303 provides:
"Aliens, the subjects of governments a peace with the United States and this State, as long as their governments remain at peace, shall be entitled to all the rights of citizens of other States resident in this State, and shall have the privilege of purchasing, holding and conveying real estate in this State."
Code Section 79-304 provid:s:
"Aliens may receive and enforce liens by mortgage or otherwise on real estate in this State."
These two sectio.ns apply to individual aliens.
As to the other questions in your letter, these matters would b: covered by the general laws of Georgia pertaining to individuals or corporations.
Under the Constitution and laws of this State, the Attorney G:neral is
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prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. However, it is a pleasure for me to refer you to the provisions of law applicablt to your inquiry as a matter of information, and I trust that the above quoted laws will help you.
PERSONS-Loss of Civil Rights (Unofficial) One convicted on murder charge and who has served a sentence in the penitentiary is not qualifed to vote.
January 26', 1948 Honorable Jno. W. Howard, Tax Collector Screven County,
This will acknowledge receipt of your letter of January 22, in which you request an opinion as to whether or not you were correct in advising a person who was convicted of murder and served a sentence in the penitentiary that, in accordance with Section II, Paragraph I, of the 1945 Constitution of Georgia, he would not be entitled to register and vote.
You must understand, of course, that since the Attorney General is authorized by law to render offic'al opinions only at the request of the Governor or one of the officials of the Executive Department of this State, anything which I might say in answer to your inquiry is only an expression of my personal views in the matter and not binding upon anyone.
Murder involves vileness and depravity, for it is the result of an abandoned and malignant heart, and is a crime involving moral turpitude. See, Hollorway vs. HolloWJay, 126 Ga. 459, at pages 460 and 461.
Mly personal view, therefore, is that a person convicted in a state court on a murder charge, and who has served a sentence in the penitentiary, is not qualified as a voter under the Georgia law unless his civil and political rights are restored.
PERSONS-Loss of Civil Rights (Unofficial) One convicted of a felony is not eligible to vote or hold office and is precluded from obtaining license for many businesses.
Mr. Caleb Foote Central Committee for Conscientious Objectors
November 18, 1948
I am in receipt of your letter of Novembtr 10, 1948 in which you state your
desire for information as regards civil rights of a conscientious objector who has been convicted of a felony for violation of the Selective Service Act.
The Code Sections which I would desire to quote you are much too long for an ordinary letter and, thertfore, I am forced to merely give you their
numbers and briefly outline their content.
Under Article 2, Section 2, Paragraph 1, of the 1945 Constitution of the
State of Gtorgia, such a person would not be permitted to register, to vote or to hold any office or appointment of honor or trust in this State.
The Code Section regarding professions may be found in Title 84 of the
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1933 Code of Georgia and also Title 9 of the Code. I will say that it is difficult to obtain a license for the majority of professions when one has been convicted of a felony.
As the Attorney Gneral is prohibited by law from rendering official opinions to persons other than the Governor and heads of the various State Departments, this letter must be consid6red as merely my personal views on this subject.
PERSONS-Residence (Unofficial) Residence period prer6quisite to citizenship is 12 months.
December 6, 1948 Mrs. Sterns Brantley Lott
This will acknowledge receipt of your 16tter of recent date, making inquiry as to the manner of changing citizenship from any state to the State of Georgia.
The G6orgia law requires that in order to qualify to vote in the Georgia elections it is necessary for a person to be 18 years of age and to have been a bona fide citizen for one year.
Residence is more or less. an intention. So, if it is your son's desire to become a citizen of Georgia, qualified to vote, he may go to the Tax Collector's office of the County in which he wish6s to claim ..residence and take the pre. scribed oath which, among other things, he must swear that he ...has been a resident of this State for 12 months.
Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of th6' State. However, it is a pleasure for me to give you the above facts as a matter of information.
PERSONS-Restoration of Civil Rights (Unofficial) The State Board of Pardons and Paroles has authority to restore civil rights lost by a conviction under Georgia law.
February 25, 1948 Mr. Leroy Stone
I wish to acknowledge receipt of your letter of F6bruary 17, 1948, in which you request information as to whether or not it is necessary to obtain a pardon from the Governor in order for you to register and vote, in view of the fact that you entered a plea of guilty to simple larceny and were given a sentence of tw6lve months.
The Attorney General is not authorized under the law to give official opinions on any matter except when directed by the Governor or the heads of the several State departments. Therefore, you will understand that the information given herein is strictly personal and unofficial.
Under the law of Georgia, the Pardon and Parole Board, upon proper application, has authority to r6store your civil rights and it will notl be necessary to obtain a pardon from the Governor. I am herewith enclosing a blank application which you may fill out and forward to the Pardon and Parole Board, State Capitol, Atlanta, Georgia, for its consideration.
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PROFESSIONS, .QUSINESSES AND TRADES---'-Accounting It is illegal for a person to maintain an established office for and to practice public accounting, whether or not he denominates himself a registered or certified public accountant.
June 22, 1948 Honorable R. C. Coleman Joint Secretary, State Examining Boards
I am in receipt of your n;quest in behalf of the Georgia State Board of Accounting for a ruling on Code Sections 84-215 and 84-217 as to whether a pe1'son with an established office and practicing public accounting such as doing audits, rendering reports thereon, and installing accounting systems, is violating the law although he neither calls himself a Registered Public Accountant nor a Certified Public Accountant.
Code Section 84-215 provides, first, that: "... Any person, or authorized representative of a corporation or firm, who shall be. engaged in the practice of public accounting and who maintains an office for such purpose in the State of Georgia on the date of enactment of this law, shall apply for registration with the State Board of Accountancy, ..." In the provision pertinent to your question, the same Code Section provides that: " ... No person, firm, association or corporation after the date of enactment of this law, except as hereinabove provided, shall engage in or use the style or title of public accountant unlE:ss the State Board of Accountancy has approved the qualifications of the registrant." Code Section 84-217 defines a public accountant as: "A person, firm or corporation having an established place of business and offering to perform for the general public any and all general accounting services." It can be seE:n that the law is not directed merely at persons holding themselves out as registered public accountants or certified public accountants, but also at persons performing general accounting services for the general public. In construing Code Section 84-215 and Code Section 84-9902, which is the criminal Gode Section pertaining to this ChaptE:r, the Court held in the case of Knight Drug Co. v. Naismith, 38 S. E. 2d, 87 (at page 89) that: "... the legislature in enacting this latter statute sought to control the profession of public accounting, and to prohibit all save those meeting the requirements of the statute from engaging therein, if they come within the definition of the statute." Therefore, the answer to your question would be that a person with an established office and practicing public accounting such as doing audits, rendering reports therE:on, and installing accounting systems is violating the law although he neither calls himself a registered public accountant nor a certified public accountant.
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PROFESSIONS, BUSINESSES AND TRADES-Accountant!; One maintaining an office for and practicing public accounting without a license is guilty of a misdemeanor and is punishable as provided in Section 84-9902.
July 1, 1948
Hon. R. C. Coleman, Joint Secretary State Examining Boards
This is to acknowledge your letter of June 24th, 1948, where in you rE:quest an opinion as to whether or not those persons with an established .office and practicing public accounting, such as doing audits, rendering reports there;n, and installing accounting systems, are violating the law and, as such, would be subject to the pE:nalties set out in Code Section 84-9902, Georgia Code Annotated.
I presume that your question has reference to persons performing the above functions who have not been registered or secured a license as required by law. My opinion is rE:ndered and is based upon this assumption.
In connection with this question, I wish to refer you to an opinion addressed to yourself and dated June 28, 1948, which holds in effect that a person with' an established office and practicing public accounting, such as doing audits, rendering reports thereon, and installing accounting systems, is violating the provisions of Chapter 84-2 of Georgia Code Annotated, assuming, of course, that no licensE: has been secured.
Since I have already expressed an opinion as to the illegality of the practice of accounting as outlined in this instant request, it follows that
such a violation of the law would be subject to the penalties contained in Sec.
84-9902 of the Georgia Code Annotated. It is to be noted that Section 84-9902 contains the following statement:
" . . . Any person who shall violatE: any other provision of Chapter 84--2 .shall be guilty of a misdemeanor, and shall on conviction be punished as pro-. vided by law.''
Clearly, this omnibus proviso quoted was intended to have, and does have, the effect of making any violation of Chapter 84-2 of the' Georgia Code Annotated punishable as for a misdemeanor.
PROFESSIONS, BUSINESSES AND TRADES-Accountants It is the duty of the Secretary of the State Examining Boa'rd, when so requested by a majority of the State Board of Accountants, to call a mE:eting.
December 30, 1948 Honorable R. G. Coleman Joint Secretary State Examining Board
I acknowledge receipt of your letter of December 28, 1948, in which you enclose a request from a majority of the State Board of Accountancy requesting you to call a mE:eting for January 7, 1949. Yo~ ask for an oQpiniob whether irt is your duty, under Section 84-204 of the Code of Georgia to comply with .this request.
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It is my opinion that when you are requested by a majority of the members of the Board. of Accountancy to call a meeting it is your duty to call such meeting in te;nps of this Code Section.
PROFESSIONS, BUSINESSES AND TRADES-Attorneys Sets out requirements for taking Bar examination.
October 19, 1948 Mr. Gregory W. Methvin
This will acknowledge receipt of your letter of October 15, 1948, in which you ask information with reference to requirements for taking the Georgia Bar examination. The following Sections of the Georgia Code of 1933, Annotated, are quoted for your information:
Sec. 9-103. "Qualifications of applicant.-Any citizen, of good moral character, who has read law and undergone a satisfactory examination as hereinafter prescribed, may practice law."
Sec. 9-104. "Aliens, eligibility to admission.-Aliens who have been two years resident in the State, and have declared their intention to become citizens, pursuant to the Act of Congress, are eligible to admission as attorneys at law."
Sec. 9-109. "Application for admission to the bar; certificate as to moral character.-Any person desiring to become a member of the bar shall make a written application to a judge of any superior court, accompanying the application with a certificate from two practicing members of the bar of this State as to his moral character, and those certifying to such character shall further state in said certificate that they have examined the applicant upon the various branches of the law and deem him qualified for admission to the practice of the law. The certificate of character and qualification shall be sealed with the number assumed by the applicant, so that said name shall not be disclosed until after the grading of such examination."
Sec. 9-120 (1947 Supplement). "Rule 4. Applications for examinations.Every applicant for admission to thE! bar by examination must present his application, and the certificate of attorneys by which the law requires the same to be accompanied (see Code, Section 9-109), to the judge of the superior court of the county in which the applicant resides, or in which he has read law for at least six months, or, if a citizen of this State in which he is stationed ~n military, or naval service. Where the superior court Of a county has more than one judge, the application may be presented to any one of such judges. Such application must be presented to the judge at least 15 days before the first day of the examination at which such applicant desires to be examined, and he must also exhibit to the judge a receipt from the Chainnan of the Board of Bar Examiners for the examination fee of $15, as the law directs.
(a) Said application shall contain the following information: The name, place of residence, and post-office address of the applicant, the date of his birth, his citizenship and length of residence in Georgia, the extent of his general education, and also the extent of his study of the law, without referring by name or otherwise to any institution in which he may have studied, with such additional facts as will show applicant entitled to present his application to the particular judge, where it is presented to the judge of a superior courtj other than the superior court of the county of his residence.
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(b) The judge to whom the application is presented must either personally know that the applicant is and has been for the next precGding 12 months a bona fide citizen and resident of the State of Georgia or he shall require evidence to that effect, including an affidavit of the applicant. He shall make such further investigation as he deems .Proper. to ascertain the truth. No person who is not thus known or shown to be such citizen and residr;nt shall be permitted to take such examination, proof as to the period of residence being required as evidence of such bona fide citizenship. The foregoing assumes the applicant is a citizen. If he is an alien, the Code, Sect on 9-104, will apply, and the contents of the application and other matttrs shall be in conformity therewith.
(c) At least nine days before the date for the beginning of the examination, each judge of the superior court shall, if practicable, forward to the Secretary of the State Board of Bar Examiners all applications received by him which are in due form and which he approves; but failur~:> of the judge to forward an application within the time stated shall not prevent the applicant from taking the examination, if his application is finally received by the Board in time therefor.
(d) If the application is not in proper form, according to the law and these rules, or if the judge knows or finds on investigation that the applicant is not of good moral character, hr; shall reject said application and 'refuse to send the same to the Secretary of the Board of Bar Examiners. It shall be the duty of the judge to make such investigation as to character or citizenship in any case where there is doubt as to either, and in so doing he may enlist aid from members of the bar if he deems it necr;ssary, but before finally rejecting an application on any ground, he shall inform the applicant as to the nature of the actual or supposed deficiency, and allow the applicant an opportunity to correct or rebut the same if the applicapt can do so; all of this tc .be done by mail or in such other manner as thr; judge may determine,. it being within his discretion whether he will allow personal appearance.
(e) If because of being unable to finish any investigation that he is required to make, or for other reason, the judge cannot forward the application to the Secretary within the time above stated, he may, if he finally approves it, forward it later, unless it is then too late for the examinaion desired, in which event, if the applicant so requests, he may hold it over for the next succr;eding examination. If an application is finally rejected by the judge, or if because of delayed approval it is too late for the examination intr;nded, and if it is not held over as above indicated, the judge shall inform the Board as to the facts, and the fee paid by the applicant to the Board shall thereupon be refundr;d to him. The judge shall also in that event deliver the application and attorney's certificate to the clerk of the supr;rior court with an entry signed by him showing the final disposition thus made of-the application; .all of which shall be filed and kept by the clerk as a permanent file."
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PROFESSIONS, BUSINESSES AND TRADES-Attorneys An alien having two years Georgia residence and having declared his intention to become a citizen is eligible to take the Bar examination.
November 17, 1948 Mrs. Margaret H. Liuba
I am in receipt of your letteri>f-November 13, 1948, in which you request my opinion as to the eligibility of your husband to take the Georgia Bar Examination in December.
You state that your husband has residl':d in Georgia since 1943, and also that he has filed application for final citizenship which he expects to receive in January, 1949. Under those facts which you state, it would appear that your husband will be eligible to take the Bar examination in December.
I refer you to Section 9-104 of the 1933 Code of Georgia, which is as follows:
"Aliens, eligibility to admission.-Ali!':ns who have been two years resident in the State, and have declared their intention to become citizens, pursuant to the Act of Congress, are eligible to admission as attorneys at law."
I also refer you to Rule 4, Sec. (b) of the Rules of the Supreme Court which are set out in the 1947 Cumulative Pocket Part of the 1933 Code.
I am taking the liberty of sending a copy of this letter to the Honorable John Slaton, of the Board of Bar Examiners, whose address is The 22 Marietta Street Building, Atlanta, Georgia, and I suggest that you confer with him upon receipt of this ll':tter.
Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. However, it is a pleasure for me to refer you to the provisions of law applicable to your question as a matter of information.
PROFESSIONS, BUSINESSES AND TRADES-Barbers and Beauticians An individual instructor of an apprentice barber or beautician may charge such apprentice for his services and for the materials used by the trainee.
June 21, 1948
Hon. W. B. Horton, Chairman State Board of Barber and Hairdresser Examiners
This is to acknowledge your letter of June 8, 1948, which requests an official opinion upon the question: may a person qualified to train a member in the barber or beauty trade, as provided in the laws of this State, charge such trainee a fee for the instruction and materials furnished the latter?
I presume that your letter has reference only to the training of individuals by a licensed barber or beautician, and that you do not intend the interrogatory to include barber or beauty schools or colleges. I am rE:ndering my opinion based upon this presumption.
I have been unable to discover in Chapter 84-4 of Georgia Code AnnotatE:d any provision which would preclude an individual instructor of a single apprentice barber or beautician from charging a fee for th& instruction or presenting a charge to such trainee for the materials used by the latter in the training process.
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This would seem to be a matter to be decided entirely by contract or agreement between the instructor and the individual student. Hence, as already indicated, it is my opinion that the individual instructor of an apprentice barber or beautician may legally charge such apprentice for the services rendered by the instructor and for the materials used by the trainee.
PROFESSIONS, BUSINESSES AND TRADES-Barbers and Hairdressers The rule of the Board of Barber and Hairdresser Examiners providing for separate establishments for schools and shops is related to and designed to carry out the law and therefore meets the requirement for rules of the Board.
April 28, 1948
Honorable W. B. Horton State Board of Barber and Hairdresser Examiners
This is to acknowledge your communication of April 27, 1948, wherein you request an official opinion as to the authority of the State Board of Barber and Hairdresser Examiners to adopt and enforce a rule requiring a barber school to be operated in a separate location from a barber shop. Your inquiry also presents the same question as to bE:auty schools and beauty shops.
By Code Section 84-407, Georgia Code of 1933, Annotated, it is provided in part that the Board of Barber and Hairdresser Examiners shall have the power to adopt reasonable rules and regulations for the enforcement of and carrying out the purposes of thE: Acts relating to the barber and beautician occupations.
The Supreme Court of Georgia in the case of Eason v . .Morrison., 181 Georgia 322, specifically recognized the rule making powers of the Board. As implied by the Court, these rule making powers arE: limited only to the extent that the rules and regulations propounded under them must be directed toward the accomplishment of the purposes of the law and must be reasonable.
In the case of Ham v. The State, 59 Georgia Appeals 872, the Court of AppE:als of this State also confessed the authority of the Board to validly promulgate reasonable rules and regulations affecting the barber and beautician occupations.
The authority to make rules and regulations having been bestowed upon the Board by the General Assembly and recognized by the Appellate Courts of the State, it is now only necessary to determine whether the rule under consideration meets the cr:teria for valid rule making.
It is to be observed that the General Assembly by its acts specifically differentiated between barber shops and barber schools or colleges. ThE: same distinction was made between the operation of a beautician business and a beauty school or college. In Code SE:ction 84-411, the General Assembly quite clearly made it a requisite for the operation of a barber school or college (also beauty school or college) that signs be displayed with lettering indicating that the operation was a school or college and that such signs must indicate the words "service by students only''. ThE: Code section also prohibits premiums being paid to students for the work which they may perform while in training and precludes the operators of the colleges from employing persons to render professional services to the public. It is provided further that all teachers and
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instructors shall devote their entire time to the instruction of students. Quite clearly the law indicates that barber shops and barber colleges (and beauty shops and beauty eolleges) must each maintain their separate identity.
The rule in question, therefore, by requiring the separation Of schools or colleges from regular shops where the public is served for a consideration, quite clearly has to do with the provisions of the law. As it is designed to carry out the purposes of the law, it is also reasonable.
These facts being obvious, it is my opinion that the rule of the State Board of Barber and Hairdresser Examiners which provides that all barber and beauty schools must be operated in separate locations from barber and beauty shops is a reasonable rule designed to carry out the provisions of the law regulating barber and beautician occupations, and is a valid exercise of the rule making powers vested in the Board.
PROFESSIONS, BUSINESSES AND TRADES-Businesses (Uno.fficial) A graduated tax is payable by dealers in arms and ammunition.
January 23, 1948 Harrington & Richardson Arms Company
I wish to acknowledge receipt of your letter of January 14, 1948, in which you request a copy of any pamphlets or digest of the statutes or ;regu1ationli applicable to established dE:alers governing the sale, transfer or purchase ol any and all types of firearms within this State.
Replying thereto beg to advise that Georgia has no pamphlets in regard to the subject matter of your letter. Wish to state, however, that Section 92-2009 of the Annotated Code of Georgia of 1933 provides for a ~ax on dealers in pistols, pistol cartridges, rifle cartridges, dirks, bowie knives and metal knucks. This tax is graduated from $15.00 to $100.00. Section 92-2016 of said code places a tax on dealers in rifle and rifle cartridges and gun shells for each place of business. This tax is graduated from $5.00 to $20.00. Upon dealers of gun shells only, a tax of $1.00 is imposed in tbwns of 3,500 or under.
In regard to the sale, transfer or purchase of the articles set forth in your letter, the general law of the State in regard to such matters prevails, the same as other commodities.
The Attorney General is not authorized under the law to give official information or opinions except when directed by the Governor or the heads df the several State departments. Therefore, you will understand that the information givE:n herein is strictly personal and unofficial.
PROFESSIONS, BUSINESSES AND TRADES-Businesses (Unofficial) The exemption of veterans from State business licenses (Ga. L. 1937) includes licenses imposed by counties under statutory authority.
March 15, 1948 Honorable Leonard Farkas County Attorney, Dougherty County
Reference is made to your recent letter in which you request my opm10n as to whether or not Section III, Georgia Laws 1947, granting exemptions from State business licenses to veterans would include those licenses imposed by counties in accordance with statutory authorization.
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It is to be observed that the Acts exempting veterans and disabled veterans generally carry statements to the effect that such exemptions are granted from taxes and licenses payable to cities and counties.
I do not believe that it was intended in the 1947 Act referred to to make any exclusions from the stated exemptions of payments of taxes and licenses by veterans and that, accordingly, veterans meeting the statutory qualifications and requirements would be exempt from the licenses imposed under the authority of Georgia Laws of 1937, p. 624, as amended by the 1'945 Laws, pp. 482, 483.
Please be advised that the Attorney General is precluded by law from rendering official opinions to anyone other than the Governor and the heads of the several departments of the State government. Accordingly, the expression contained in this letter is in no way to be considered as an official opinion, neither is it to be considered binding upon this Department nor upon any officials of the State or local governments. I would appreciate your accepting the opinion contained herein in accordance with these strict limitations.
PROFESSIONS, BUSINESSES AND TRADES-Busineases (Unofficial) Veterans with 10% disability are exempt from all license taxes levied by cities and towns.
March 22, 1948 Mr. Roger C. Fulghum, Clerk Town of Harrison
I have your letter of March 10, 1948 in which you requested my opinion on the following question:
Is a disabled veteran's business license exemption applicable to municipal occupation taxes?
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the heads of the various State departments; therefore, this is strictly a personal opinion, and is not binding on anyone.
Under Code Section 84-2011, 84-2012, as amended by Georgia Laws (1947) pages 1163, 1164, World War II veterans who are disabled to the extent of 10% or more, and who do not make sufficient income to subject them to State income taxes may obtain a certificate which exempts them from any license imposed by any town, city or county for the privilege of conducting a business or peddling.
This section was construed by the Supreme Court in the case of Town of! .Fairburn vs. Edmondson, 162 Ga. 386, "Any disabled or indigent soldier of the late European war, who is a resident of this State, may peddle or conduct business in any town or city thereof, except peddling or dealing in ardent and intoxicating drinks, running a billiard, pool, or other table of like character, dealing in futures, peddling stoves or clocks, carrying on the business of a pawnbroker or auctioneer, or dealing in lightning-rods, without paying any license fee for the privilege of so doing; and a certificate from the ordinary of the county, stating the facts of his being such disabled or indigent soldier, shall be sufficient proof thereof."
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World War II disabled veterans come under this rule by the amendments to Code Section 84-2011 discussed above.
Therefore, in view of the above authority, it is my opinion that in the instant case the veteran's businE:ss license exemption applies to all cities and towns in this State.
PROFESSIONS, BUSINESSES AND TRADES-Businesses (Unofficial) Veterans with 10% disability are exempt from all license taxes levied by cities and towns.
March 22, 1948 Mrs. Mildred L. Brantley, Ordinary Hanco*ck County
I have your letter of March 9, 1948 in which you requested my opinion on the following question:
Is a disabled veteran's business license exemption applicable to municipal occupation taxes?
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone E:xcept the Governor and the heads of the various State departments; therefore, this is strictly a personal opinion, and is not binding on anyone.
Under Code Sections 84-2011, 84-2012, as amended by Georgia Laws (1947) pages 1163, 1164, World War II veterans who are disabled to the extent of 10 o/o or more, and who do not make sufficient income to subject them to State income taxes may obtain a certificate which exempts th~:,m from any license imposed by any town, city or county for the privilege of conducting a business or peddling.
This section was construed by the Supreme Court in the case of Town of Fairburn vs. Edmondson, 162 Ga. 386. "Any disabled or indigent soldier of the late European war, who is a resident of this State, may peddle or conduct business in any town or city thereof, ~:,xcept peddling or dealing in ardent and intoxicating drinks, running a billiard, pool, or other table of like chamcter, dealing in futures, peddling stoves, or clocks, carrying on the business of a pawnbroker or auctioneer, or dealing in lightning-rods, without paying any license fee for the privil~:,ge of so doing; and a Certificate from the ordinary of the county, stating the facts of his being such disabled or indigent soldier, shall be sufficient proof thereof."
World War II disabled veterans come under this rule by the amendments to Code Section 84-2011 discussed above.
Therefore, in view of the above authority, it is my opinion that in the ir1stant case thE: veteran's business license exemption applies to all cities and towns in this State.
PROFESSIONS, BUSINESSES AND TRADES-Businesses (Unofficial) Veterans with 10 percent disability are exempt from license imposed by towns, cities and counties on businesses.
Mr. J. W. Oxford, City Clerk
April 16, 1948
I have your letter of April 5, 1948 in which you requested my opinion on
the following question: Are veterans E:xemption certificates applicable to
municipal occupation taxes?
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As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the heads of the various State departments; therefore, this is strictly a personal opinion and is not binding. on anyone.
Under Code Sections 84-2011 and 84-2012, as amended by Georgia Laws 1947, pages 1163 and 116'4, World War II veterans who are disabled to the extent of ten per cent or more, and who do not make sufficient income to subject them to State income taxes, may obtain a certificate which exempts them from any license imposed by any town, city or county for the privilege of conducting a business of peddling.
This section applies to Vtterans of ten per cent disability and they are exempt from municipal occupation and license taxes.
Section 84-2024 states: "Five-year exemption from business taxes of veterans of World W.ar !I.All honorably discharged veterans of the armed services who served in World War II between December 7, 1941 and the passage of this law shall be exempt from State busintss licenses for a period of five years from/ the passage of this Section." You will note the distinguishing feature here and the Sections discussed above regarding disabled veterans is that it applies only to World War II veterans and they do not have to be disabled, and it is applicable only to State licenses for a period of five years commencing March 27, 1947. I am enclosing a .copy of the administrative regulations of this law and hope that it may further clarify the matter for you.
PROFESSIONS, BUSINESSES AND TRAD.ES-Businesses (Unofficial) The sale of air rifles or spring guns is not prohibited nor is there a tax on dealers in thest articles.
April 5, 1948 Mrs. Gladys M. Kiernan Executive S'ecretary Institute of Distribution
I beg to acknowledge receipt of your letter of March 30, 1948, in which you request information respecting the prohibition and sale by retailers of air rifles or spring guns.
Replying thereto I beg to advise that the Attorney General of Georgia is not authorized, under the law, to render official opinions upon any matters except when directed by the Governor and the heads of the several State Dtpartments, therefore, the information given herein is strictly personal and not binding upon anyone.
The State of Georgia has no State laws prohibiting or regulating the sale of the above articles, neither is there any tax on dealers of such articles.
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PROFESSIONS, BUSINESSES AND TRADES-Businesses (Unofficial) Merchandise carried in stock by one operating under a disabled veteran's business license is not exempt from ad valorem taxes.
April 6, 1948 Mr. 0. W. Marshall, Jr. Marshall SupPly Company
I have your letter of March 29, 1948 in which you requested my opm10n of the following question: Whether a veteran's business license exemption exempts his merchandise carried in stock i'rom ad valorem taxes.
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the heads of the various State departments. Therefore, this is strictly a personal opinion and is not binding on anyone.
Section 92-301' of the Georgia Code Annotated states: "Authority to levy and collect; census by which population governed; 'in towns or cities' defined.-In addition to the ad valorem tax on real estate and personal property, as required by the Constitution and provided for by law, the specific and occupation taxes provided for by Chapters 92-3 to 92-20 shall be levied and collected each year. . . ." There is a distinction between a license tax assessed on an occupation or business which gives one the right to engage in such a venture and taxes which are assessed on a certain percentage of the valuation of one's real and personal property. Without knowing all the facts in your case, I am assuming that you are operating under a disabled veteran's business license exemption which gives the veteran the privilege of conducting a business without paying a license for so doing. However, this veterans license exemption does not apply to ad valorem taxes, income taxes, etc.
PROFESSIONS, BUSINESSES AND TRADES-Businesses Refunds of license taxes paid by veterans and deposited in the State Treasury may be made by the Insurance Commissioner only with legislative approval.
April 22, 1948 Hon. Zack D. Cravey Comptroller General and Insurance Commissioner
I am pleased to acknowledge your letter of April 15th, in which you ask whether or not you have the authority to make refunds to certain veterans of business license taxes that have been previously paid to you as Insurance Commissioner. You specifically state the following:
"A number of insurance agents have paid their $10.00 business tax, as required by Section 92-2501, and, in addition, the $3.00 tax for certificates of authority or license to agents, as required by Section 56-506, have been paid presumably by the insurance companies for each agent. After paying the above license and occupation taxes, these agents have engaged in the solicitation of insurance. Now some of these agents have returned to the Department with veteran's exemption certificates, under Section 84-2024, with request that they
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be refunded the amount of their license and/or occupation tax in recognition of said certificatE; of exemption. Inasmuch as this tax has been deposited in the account of the Insurance Commissioner and/ or into the Treasury of the State, we, of course, have not made refund to any of these veterans as we are not sure that we have the legal right to do so."
You ask S6veral questions in connection with the above statement, all of which may be answered by determining the basic issue of whether the Insurance Commissioner is authorized to make a refund of taxes which have been deposited in the State Treasury.
Article 3, Section 7, Paragraph 11 of th6 State Constitution reads as follows:
"No money shall be drawn from the Treasury except by appropriation made by law."
Since the tax6s in question have already been deposited in the State Treasury, it becomes necessary to have legislative authority before money can be withdrawn from the Treasury to make the refunds under consideration. An examination of the Appropriation Act relating to the office of Comptroller Gen6ral and Insurance Commissioner reveals that the Legislature has not made an appropriation of funds for the payment of taxes or license fees erroneously or illegally collected by the Insurance Commissioner. Ukewise, the laws relating to the office of Insurance Commissioner fail to authorize the payment of r6funds. Without specific legislative authority, I am of the opinion that you would not be authorized to make refund payments from funds which have been deposited in the Treasury of this State. It would also follow that you are without authority to make payments or refunds from the operating expenses of your office, since the Legislature has not authoriz6d such payments to be made.
The Legislature has specifically authorized the Commissioner of Revenue to make refund payments of all taxes which may have be6n erroneously or illegally collected by him. See, Section 92-8436 of the Amended Code. However, we find no such provision in refer6nce to the payments of refunds by the Insurance Commissioner.
In view of the above constitutional provision (Section 2-1911) it would be necessary to have legislative approval before the Insurance Commissioner would be authorized to mak6 a refund of taxes or licenses collected by him, even though it be assumed that such collection was erroneous and illegal.
PROFESSIONS, BUSINESSES AND TRADES-Businesses (Unofficiail) Businesses must register each year with the Ordinary of the County of residence.
April 23, 1948
Mr. A. S. Johnson Tax Collector, Jackson County
I have your letter of April 6, 1948 in which you r6quest my opinion of the following question: Is it mandatory for businesses to register each year with the Ordinary of the county in which they reside.
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the h6ads of the various State departments; therefore, this information is to be considered strictly of a
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personal nature and is not binding on anyone. Section 92-2104 of the Georgia Code Annotated states: "Payment of taxes to whom; time; report.-The taxes provided for in this
Jaw shall be paid in full at January first, or when business begins for the calendar year for whieh they are levied, and at January first annually thereafter; and, except where otherwise provided, said taxes shall be paid to the tax collectors of the counties where such vocations are carried on, at the time of commencing to do business. Before any person shall be authorized to open up or carry on said business, he shall go before the ordinary of the county in which he proposes to do business and register his name, the business he proposes to engage in and the place where it is to be conducted; and he shall then proceed to pay the tax to the collector, at or before the time of commencing to do business as hereinbefore provided; and it shall b~:: the duty of said ordinary to immediately notify the tax collector of such registration, and at the end of each quarter to furnish the Comptroller General with a report of such. sp)ecial tax registration in his office. The ordinary is hereby authorized to dollect a fee of $1 from each registrant.''
My interpretation of the above statute is that businesses are required to register annually on or before January 1 with the Ordinary of the county in which they proposed to do business. This registration is accomplished by writing to the Ordinary of the county setting forth the name, address and the n\ature of the business. A registration fee of $1.00 is payable to the Ordinary.
PROFESSIONS, BUSINESSES AND TRADES-Businesses (Unofficiart) Moving picture shows, where given for educational purposes, are not subject to a business tax.
April 23, 1948
Mr. H. J. Jenkins, Principal Baxley Training School
I have your letter of April 19, 1948 in which you requested my opinion relative to your liability for a business tax on the use of a moving picture projector.
As you know, the Attorn~::y General is prohibited by law from rendering official opinions to anyone except the Governor and the heads of the various State departments; therefore, this information is to be considered strictly of a personal nature and is not binding on anyone.
Section 92-611 of the Georgia Code Annotat~::d states: "Moving picture and electric shows.-Each and every electric show or exhibition of moving pictures or illustrated songs, except where given for educational purposes, shall pay for each place of business in or near cities or towns of less than 2,000 inhabitants, $2 p~::r month; in or near cities or towns of from 2,000 to 5,000 inhabitants, $3 per month; in or near cities of from 5,000 to 10,000 inhabitants, $7 per month; in or near cities of from 10,000 to 25,000 inhabitants, $10 per month; in or near cities of from 25,000 to 50,000 inhabitants, $12.50 per month; in cities of 50,000 or more inhabitants, $25 per month, except in suburbs of cities of more than 50,000 inhabitants, where the tax shall be $12.50 per month: Provided, the word 'near', as used in this s~::ction, shall
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be construed to mean within a radius of three miles of the corporate limits of any such cities or towns referred to in this paragraph."
The crux of your liability for this tax depends upon whether your operation is for a purely educational purpose, and the facts given in your letter are not sufficient for me to make such a determination. Therefore, I suggest you take the matter up with your city attorney.
PROFESSIONS, BUSINESSES AND TRADES-Busines.ses No restriction is placed on the number or location of businesses operate:d under a World War II veteran's exemption from State business licenses.
April 30, 1948
Honorable Glenn S. Phillips State Revenue Commissioner
I am pleased to acknowledge your letter of April 22, 1948, in which you state the following:
"We have received an application from a veteran to operate two businesses which arE: of the same nature but at different locations, and I shall )thank <you to advise me if a veteran is entitled to a certificate exempting him from' the payment of state business licenses on businesses that are not at the same location, or to be more specific, are veterans of World War II exempt from the payment of state business licenses regardless of the location and regardless of the businesses engaged in? I am aware, of course, that there are certain businesses that it is not permissible to operate under a veteran's certificat~ of exemption."
Section 3 of the Act of 1947, Georgia Laws 1947, pages 1164-1165 provides as follows:
"All honorably discharged veterans of the armed services who served in World War II be:tween December 7, 1941, and the passage of this Act shall be exempt from state business licenses for a period of five years from the passage of this Act."
As I have previously pointed out to you in another opinion, there is some question as to the constitutionality of this act due to the fact that the provisions contained in the body of the act may not be sufficiently covered in the caption; however, the general rule is that a statute is presumed to b~ constitutional until declared otherwise by the courts of this State.
Legislative history affords in many instances accurate and compelling guides to legislative meaning. It is noted that commencing with the Confederate V ~:terans the General Assembly has made various license exemption concessions to the veterans of the Spanish-American, Boxer Rebellion, Philippine Insurrection, World War I, World War II, and also it has provided for such exemptions to veterans of the peace time services. Of course, the qualification for these exemptions vary; however, at the end of every war the legislature has re:ached out with a helping hand to the veterans by extending them business license exemptions.
The Supreme Court in the case of Tyner vs. Winslett, 174 Ga. 270, ruled as follows:
"No policy has been more tenaciously or more properly adhered to in this State than that of e:xtending to Confederate soldiers, with proper qualifications,
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every possible exemption not forbidden by the Constitution." Naturally, this same rule would apply to veterans of all wars. Thus, the
legislature and the Supreme Court of this State have manifestly shown as their intention to give the veterans every possible bE:nefit under these laws.
It is reasonable to assume the 1947 legislature intended to give to all honorably discharged World War II veterans a five year exE:mption from the payment of State business license taxes in order that they might have a chance to rehabilitate themselves and make a fresh start in the businE:ss world.
In view of the above, I have reached the conclusion the 'legislature did not intend to place any limitation on the five year E:Xemption with respect t~ the number of businesses or business locations of the veterans who are entitled to its provisions.
PROFESSIONS, BUSINESSES AND TRADES-Bu,sinesses (Unofficial) A general contractor who actually does the plumbing, heating and electri~ cal work is subject to license taxes.
May e:, 1948
Bell, Boyd & Marshall Attention: Mr. A. BrucE: Mercer Your letter addressed to the Secretary of State, relative to whether a gen~
era! contractor is subject to license taxes for plumbing, heating and electrical work, has been referred to me for reply.
As you know, the Attorney General is prohibitE:d by law from rendering official opinions to anyone except the Governor and the heads of the various State departments; therefore, this information is to be considered strictly of a personal nature and is not binding on anyone.
The administrative construction of Sections 92~902 and 92-903, referred to in your letter, is simply this: If a general contractor sub-let~ the plumbing, heating and electrical work to sub-contractors who are licensed, then he is not subject to the license taxes. On the other hand, if the general contractor undertakes to do all of the work himself, then he would bt required to pay the taxes.
PROFESSIONS, BUSINESSES AND TRADES-Businesses (Unofficial) Grocery store of disabled veteran is exempt from ~ity business licE:nse but subject to ad valorem or property taxes.
May 6, 1948 Mr. J. S. Bulloch
I am pleased to acknowledge your letter of April 27, 1948 in which you request my opinion as to whether or not your grocery store is subject to city taxE:s.
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the heads of the various state departments; therefore, this information is to be considered strictly of a personal nature and is not binding on anyone.
Under Code Sections 84-2011 and 84-2012, as amended by Georgia Laws 1947, pages 1163 and 1164, the Spanish-American, World War I, and World
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War II veterans who are disabled to the extent of ten per cent; or more, and who do not make sufficient income to subject them to State income taxes, may obtain a certificate from the Ordinary which exempts them from any license imposed by any town, city or county for the privilege of conducting a business of peddling.
However, this exemption applies to business licenses only. Ther~;' is no provision of law for the exemption of ad valorem taxes to veterans. In other words, your real and personal property, even though you ar~; a veteran, is still subj'ect to ad valorem or property taxes.
PROFESSIONS, BUSINESSES AND TRADES-Businesses (Uno.fficial) 1. A disabled veteran of any war is exempt from city, county and state business licenses on one independent busin~;ss. 2. World War II Veterans without disability are exempt from State Business licenses for a 5-year period from March 27, 1947.
May 7, 1948
Honorable A. S. Johnson Tax Collector, Jackson County
I have your l~;tter of April 6, 1948 in which you requested my opmwn on how the veterans exemption law affects a veteran engaged in several different businesses.
Today I have released an official opinion to the Commissioner of Revenue on the construction of Section 3 of the Act of 1947, Georgia Laws 1947, pages 1164, 1165, which has important bearing on the question which you present. Thus, I have delayed the answering of your l~;tter until the completion of the study of the aforementioned opinion.
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the heads of the various state d~;partments; therefore, this information is to be considered strictly of a personal nature and is not binding on anyone.
Under Code Sections 84-2011 and 84-2012, as amended by Georgia Laws 1947, pages 1163 and 1164, Spanish-American, World War I and World War II veterans who are disabled to the ext~;nt of ten per cent or more, and who do not make sufficient income to subject them to State income taxes, may obtain a certificate from the Ordinary and the State Revenu~; Commissioner which exempts them from any business license imposed by any town, city or county, for the privilege of conducting a business or peddling.
You will note that this section applies to disabled veterans and exempts them if th&y so qualify from city, county and State taxes. Also, I call your attention to Section 3, Georgia Laws 1943, pages 617, 619, which states:
"Section 3. All veterans eligible for a veterans' certificate of exemption to be issued by the State Revenue Commissioner shall state in their application filed with the State Revenue Commissioner the kind of business to be operated and the place where such business is proposed to be carried on, an~ only the business described in the application shall be exempted from the payment of State, county and municipal taxes, and no veteran shall operate in his own name any other business than that d&scribed in his application filed with the State Revenue Commissioner as herein provided."
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Part of the caption of the above state act reads as follows:
"... to provide that no veteran shall receive a certificate of exemption for
the operation of more than one place of business: . ; .."
Therefore, in view of the above, a disabled Spanish-American, World War
I or World War II VE:teran, (who otherwise qualifies), operating several dif-
ferent and independent types of businesses, would be entitled only to an exemp-
tion upon one business. It is conceivable, however, that many business enter-
prises which are made up of several component parts are at the same time
interrelated and taken togethE:r form one business.
For example, a veteran could hardly earn a living from the operation of
one vending machine. It is my opinion that it was the intention of the legislature
to provide a tax exemption on a veteran's occupation in which he could earn a
livE:lihood. On the other hand, if a veteran had enough vending machines to
earn sufficient income to pay State income taxes, then that would bar his
exemption.
In 1947 the legislature passed 5ection 3, Georgia Laws 1947, pages 1163
and 1164, as follows:
"Section III. All honorably discharged veterans of the armed services
who served in World War II between December 7, 1941 and the passage of this
Act shall be exempt from State Business Licenses for a period of. five yea11s
from the passagE: of this Act."
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In the opinion referred to above I have ruled that Section 3, which applies cnly to World War II veterans for a period of five years is not limited to one business. I call your attention to the fact that this provision applies only to State business licenses. Also, in a prior opinion, I have hE:ld that the income tax provision does not apply to the above section.
In conclusion, if a disabled Spanish-American, World War I or World War II veteran is operating under a disability provision of the veterans exemption law, he does not have to pay city, county and State business licensE:s; however, he is subject to the income tax provisions and is c'<mfined to only one independent business. The exemption is continued as long as he is qualified; however, he must make application for the exemption annually.
On the other hand, World War II veterans without diability may be exempt from State business licenses for a five year period commencing on March 27, 1947, and they are not limited to the income tax provisions or to one independent business under said exemption.
PROFESSIONS, BUSINESSES AND TRADES-Businesses Sets out in enclosure various laws relating to exemption of veterans from business licenses and opinions construing same.
May 11, 1948
Honorable Glenn S. Phillips State Revenue Commissioner
I am pleased to acknowledge your letter of May 8, 1948, in which you requE:sted that I prepare a brief synopsis of the veterans license exemption laws including official opinions that have been previously rendered construing these laws.
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Attached hereto please find the requested synopsis, and I trust that this is the information you have sought.
In order to clarify veterans license exeiTIIption laws it is imperative to divide them into two classifications; the first of which is covered by Sections 84-2011 and 84-2012 of the Georgia Code Annotated. Therefore, under the first classification:
1. Veterans who are entitled to the exemption. Confederate, Spanish-American, World War I and World War II veterans who are disabled to the extent of lOo/o or more. Veterans of peace time services of the armed forces who have a 100% disability also come under this law. 2. What is exempted? Veterans who qualify under the disability prov1s10ns quoted above are exempt from the payment of business licenses imposed by any city, county and State of Georgia. 3. Limitations. Veterans operating under the disability prov1swns, who make sufficient income to subject them to State income taxes, are barred. This section of the law also limits a veteran to one independent business license exemption. If a veteran is operating an inter-related business, such inter-related business naturally would come under the exemption. The inter-relation of such business to be determined by the facts in each case by the State Revenue Commissione:r. 4. Profes.sions. Exemptions from a business license tax or occupation tax has been extended to professions and semi-professions.
5. Business to which exemptions do not apply. Businesses which may not be exempted from business licenses are: Dealer in pistols, pistol cartridges, rifle cartridges, dirks, bowie-knives or metal knucks. Dealer in ardent and intoxicating drinks. Dealer in lightning rods. Dealer in futures. Dealer in fire works. Operator of a billiard or pool room or table. Operator of a rolling store. Peddler of stoves or clocks. The business of a pawn broker. The business of an auctioneer.
6. Procedure for obtaining exemption.
(a) First a certificate must be obtained from the Ordinary of the county
of the residence of the veteran. Proof of 10 o/o or 100 o/o disability, as the case
may be, must be established by written evidence from the United States Veterans' Administration, or it may be proven by a certificate signed by two Physicians as to such disability.
(b) Affidavit that veteran is not subject to the payment of State income taxes, and stating his business or profession, location of said business or office.
(c) Proof of discharge under honorable conditions.
The next step to complete the exemption is to obtain a certificate from the State Revenue Commissioner located at the State Office Building, Room
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517, Atlanta, Georgia. The veteran must make the application annually and the license is extended as long as the veteran is qualified.
7. Revocation of Certificate. The Revenue Commissioner has the power to revoke a veterans' certificate under the following circ*mstances: (a) When a veteran allows another person to use his certificate. (b) When it shall sufficiently appear that the holde,r has become physically or financially ineligible. (c) When a certificate was procured by fraud or mistake. The second classification applies only to Section 84-2024, which was passed by the General Assembly March 27, 1947. 1. Veterans who are entitled to the exemption. World War II veterans, with or without disability, discharged under honorable conditions. 2. Wh.at is exempted? State business licenses taxes only. 3. Limitations. The income tax and one business proviso does not apply to this section. 4. Professions. The exemption is extended to professions and semi-professions.
5. Five year period. The exemptions under this section are for a five year period which commenced March 27, 1947 and terminates on March 27, 1952, and will include exemption for the year 1952. 6. Businesses to which exemptions do not apply. Same as stated above.
7. Procedure for obtaining exemption. The procedure is the same as stated above, with the exception that, naturally, no disability has to be established, or proof of income tax paid, only the evidence of discharge under honorable conditions.
PROFESSIONS, TRADES AND BUSINESSES-Businesse,s (Un.official) 1. A World War II veteran without disability is exempt only from State business licenses for five years from the effective date of the Act. 2. This exemption is available only where the veteran is the, sole owner of the business or where a partnership is wholly veteran-owned.
June 23, 1948
The Stein Printing Company Attention: Mr. C. A. Buchanan I am pleased to acknowledge your letter of June 19, 1948 in which you
requested my opinion relative to the veterans License Exemption Laws. As you know, the Attorney General is prohibited by law from giving official
opinions to anyone except the Governor and the various State department heads: therefore, this information is of a personal nature and is not binding on anyone.
Unfortunately, the newspaper story referred to in your letter was erroneous. World War II veterans without a disability are exempt from State business license,s only for a period of five years commencing March 27, 1947. A
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veteran must be the sole owner of the business in order to receive the exemption. Of course, if two World War II veterans formed a partnership, the partnership would be exempt.
Since the news story confused many veterans concerning the exemption laws, I have compiled a complete synopsis of these laws in outline form and I am enclosing one of these outlines for your further information.
PROFESSIONS, TRADES AND BUSINESSES-Businesses (Unofficial) Book agents are subject to an occupational tax.
July 12, 1948 Mr. W. H. Hames
This will acknowledge rbceipt of your letter of July 1, 1948 with reference to your proposed business of selling educational books.
An occupational tax is imposed on all book agents under Georgia law, as follows:
"92-502. Book agents or canvassers.-Each agent or canvasser for books, maps, or lithographic prints, shall pay in each county in which he shall do business, a tax of $5: Provided, that this shall not apply to bona fide students earning their way through school or college, nor ':o persons seU:ng Bibles only."
This tax is dut and payable annually on January 1st of each year. If business is commenced after that date, then the tax is due on the date business is commenced. When business is commenced or or after July 1st of any year, the business license fee is 50% of the annual fee for the year in which the business is started. The occupational taxes are paid to the Tax Colltctor in the county where such vocations are carried on. Upon a failure to pay the tax required by law within 90 days from the date due, a penalty of 10% of the tax due is imposed.
Section 92-2104 of the Code requires that all businesses be registered with the Ordinaries of the counties in which said business is proposed to be carried on. The law imposes a penalty for failure to register, upon conviction.
Section 106-301 of the Code provides: "Business conducted under trade name, partntrship name, etc., to be registered; exceptions.-Every person, firm or partnership, carrying on in this State any trade or business under any trade name or partnership name or other names, which does not disclose the individual ownership of the trade, business, or proftssion carried on under such name, shall within 30 days from the approval of this Chapter or thereafter commencing to do business, file in the office of the clerk of the superior court of the county in which said business is chiefly carried on, or in case of a domestic corporation, using any name other than its corporate name, in the county of its legal domicile, a registration statemtnt, verified by affidavit, setting forth the name or names and address of the person, persons, firm, partnership owning and carrying on said trade or business, and stating the nature of the business being carried on and the trade, partnership, or other name used; and shall, upon any change of ownership, liktwise file a new and amended statement of registration; ...." Your letter does not contain a full statement of facts as to your proposed Gperations and I would suggest that you see Mr. B. E. Thrasher, Chief Clerk, Property and License Tax Unit, Statt' Revenue Department, 5th Floor State Office Building, and furnish him additional facts and he will be glad to give you further advices concerning your proposed business, if you find it necessary.
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PROFESSIONS, BUSINESSES AND TRADES-Businesses (Unofficial) An occupational tax is payable by a collection agency even though the colltctions are sent direct to the creditor.
July 12, 1948 Honorable William E. Torkelson Assistant Attorney General The State of Wisconsin
This will acknowledge receipt of your letter of July 2, 1948 with reference to the occupational tax imposed under Section 92-503 of the Code of Georgia on colltcting agencies, etc.
We construe the law above referred to to be applicable to persons, firms or corporations which engage in the business of sending out a series of letters designed to induce a debtor to pay the amounts direct to the creditor and not to the agent of such creditor sending out the stries of letters. The law is, therefore, administered accordingly and we have had no occasion for a case to be presented to the courts for a construction of this provision of the law. However, an opinion was rendered by one of my predecessors in office on September Hi', 1932 to a special tax investigator, which hE,ld in substance as follows:
"Where payments for a collection by an agency are made not directly to the agency but to the creditors, the agency is nevertheless liable for a tax imposed on such agency."
PROFESSIONS, BUSINESSES AND TRADES-Businesses (Unofficial) No occupational license tax is payable upon the sale of merchandise over the radio.
July 19, 1948 Mr. David Carpenter, General Manager W CON The Atlanta Constitution
This will acknowledge receipt of your letter of July 13, 1948 in which you inquire concerning the possible tax which might be effective up,on the sale of merchandise over the radio.
Georgia law has no provision by which we can impose an occupational license tax for this type of optration. However, it might be that the person engaged in selling merchandise over the radio would be subject to the income tax law, which could only be ascertained after a full statement of facts as to operations. If you are further interested as to any particular client, I would suggest that you furnish Mr. Fielding Dillard, Director of the Income Tax Unit, State Revenue Department, with a full statement of facts and he will be glad to advise you as to the income tax liability.
PROFESSIONS, BUSINESSES AND TRADES-Businesses (Unofficial) Veterans without disability, are not exempt from city license taxes.
July 19, 1948 Mr. R. H. Hightower, Jr. Hightower Buick Company
I am pleased to acknowledge your letter of July 9, 1948 in which you requested my opinion relative to whether World War II veterans, without disability, are entitled to exemptions from city license taxes.
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As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the various State department heads; therefore, this information is purely of a personal nature and is not. binding on anyone.
World War II veterans, without disability, are eligible for exemption from State license taxes only for a period of five years commencing March 27, 1947. Veterans who have a disability of 10% or more are eligible for an exemption from city, county and State license taxes as long as their disability continues. Since there has been some confusion regarding the veterans' exemption laws, I have prepared a brief synopsis of the law, which is enclosed.
PROFESSIONS, BUSINESSES AND TRADES-Businesses No exemption from ad valorem taxes is granted on property used by a blind person as a store.
August 11, 1948
Mr. T. W. Bingham Industrial Placement Agent for the Blind State Department of Education Division of Vocational Rehabilitation
I am pleased to acknowledge your letter of August 4, 1948 in which you requested my opinion relative to whether certain real property in Commerce, Georgia could be exempt from ad valorem taxes, since the property was to be
used to house a small business for a blind lady. Code Section 92-101 states: "Taxable property.-All real and personal property, whether owned by
individuals, or corporations, resident or nonresident, shall be liable to taxation, except as otherwise provided by law."
In other words, all real property in Georgia is taxable unless it is specifi-
cally exempted by law. Section 92-201 of the amended Code sets forth the
property which is exempted, as follows:
"Property exempt from taxation.-The following described property shall
be exempt from taxation, to-wit: All public property; places of religious worship
or burial; all institutions of purely public charity; hospitals not operated for the
purpose of private or corporate profit and income; all buildings erected for and
used as a college, nonprofit hospital, incorporated academy or other seminary
of learning, and also all funds or property held or used as endowment by such
colleges; nonprofit hospitals, incorporated academies or seminaries of learn-
ing,
"
After a careful study of the statutes and the cases, I am unable to find
any provision of law which exempts an operation such as described in your
letter. Unfortunately, this operation cannot be classified as an "Institution of public charity".
The Supreme Court of Georgia in the case of Trustees of the Academy of Richmond County vs. Bohler, 80 Ga. 159, sets forth the following rule:
"If property is allowed to be used as taxed property, it also is to be taxed. If it competes, in the common business and occupations of life, with the property of other owners, it must bear the tax which theirs bears. Thus, if even a synagogue or a church were rented out during the week for a store-room or a
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shop, though divine service might be performed in it on Saturday or Sunday, and though the rents were all appropriated to religious or charitable uses, its exemption would be lost."
I deeply regret that the law does not provide for an exemption for a case of this type and I sincerely hope that the Lions Club of Commerce, or some other civic club, will see fit to pay the ad valorem tax on this property in order that the blind lady's project will bE> successfully carried out.
PROFESSIONS, BUSINESSES AND TRADES-Businesses (Unofficial) Veterans and their agents are not exempt from Rolling Store Tax under Veterans Exemption laws.
August 11, 1948 Mr. C. C. Jackson
I am pleased to acknowledge your undated letter in which you requested my opinion as to whether an agent of a veteran could be exempt from the rolling store tax under the Veterans Exemption laws.
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the various State department heads; therefore, this information is purely of a personal nature and is not binding on anyone.
Veterans are exempt from the payment of occupational taxes or business licenses if they meet certain qualifications. World War I and II veterans who have a 10% or more disability are exempt from the payment of city, county and State occupation taxes. On the other hand, World War II veterans, without disability, are exempt from the payment of State business licenses only for a period of five years commencing March 27, 1947.
You will note that the exemptions stated above refer to occupation and business license taxes. The purpose of the rolling store tax is stated in Section 92-2950, as follows:
"State tax on rolling stores.-In order to construct and maintain the rural post roads of this State and to require those using said roads for the conduct of business to pay a portion of the cost of maintaining the same, there is hereby levied upon each motor vehicle used as a rolling store, as hereinafter defined, from or at which goods, wares, merchandise, or commodities of any kind or description are sold or offered for sale at retail, an annual license on the following basis: ...."
Since this is not a tax on occupation or business licenses, but a tax to help maintain the roads, consequently veterans and their agents cannot be exempted under the veterans exemption law.
PROFESSIONS, BUSINESSES AND TRADES-Businesses
All ve':erans with a 10 o/o disability are exempt from1 State, city and county license taxes. World War II veterans without disabWty are exempt for five years from effective date of act from State license taxes.
September 27, 1948 Mr. Festus E. Johnson
I am pleased to acknowledge your letter of September 14, 1948 in which you requested information relative to your rights of exemption from city business licenses.
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On May 8, 1948 I rendered an official opm10n to Honorable Glenn S. Phillips, State Revenue Commissioner, which, in effect, is a synopsis of all veterans exemtPtion laws. I have enclosed a copy of this opinion for your information.
You will note that vettrans who are disabled to the extent of 10o/o or more are exempt from the payment of business licenses imposed by any city, county and the State; whereas, World War II veterans who have no disability are exempt for a five year period from State business licenses.
PROFESSIONS, BUSINESSES AND TRADES-Businesses (Unofficial) Persons without legs are not, by reason thereof, exempt from municipal license tax.
November 16, 1948 Mr. B. N. Nightingale City Attorney
I have carefully studied your excellent opinion relative to exemptions from municipal license taxes.
As you know, the Attorney Gentral is prohibited by law from rendering official opinions to anyone except the Governor and the various State department heads; therefore, any information that I give to you has to be of a personal nature.
I concur with you in yeur conclusion that there is no provision of law exempting people without legs. I regret that the law does not make such provision.
Enclosed I am sending you a copy of an official opinion which I rendered rtogarding veterans exemptions from license taxes, which may be of interest to you .
.PROFESSIONS, BUSINESSES AND TRADES-Businesses (Unofficial) Requirements as to conduct of mail order business are found in Chapter 92-16, Georgia Code, 1933.
November 18, 1948 .Mrs. Julia Lynch
I am in receipt of your letter of recent date in which you request information as to registration and licensing of the mail order business which you are about to start.
I regret that the Code chapter which I will refer you to is much too long for quoting in this letter. However, you should have no trouble in obtaining a Code to study this particular chapter, which is Chapter 92-16 of the 1933 Code of Georgia.
I suggest that you write the Department of Revenue, State Office Building, Atlanta, Georgia, for more complete information as regards your needs.
As the Attorney General is prohibited by law from rendering official opinions to persons other than the Governor and heads of the various State Departments, this letter must be considered as merely my personal views on this subject.
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PROFESSIONS, BUSINESSES AND TRADES-Busineases (Unofficial) The provisions of law with reference to assessments by counties of rolling store licenses are found in Ga. Code, 1933, Section 92-2960.
December 27, 1948 Hon. B. A. Young, Ordinary
I am pleased to acknowledge your letter of December 22nd, in which you ask whether or not a county is authorized to collect a rolling store license on a motor vehicle operated as such within the county.
Section 92-2960 of the Amended Code provides as follows: "Any county may levy a license tax upon each rolling store, operating within the county levying the same, a license fee or tax not exceeding the tax prescribed by this law (Section 92-2950 to 92-2960) for the State. It is the legislative intent that such counties may or may not levy such tax, as herein provided, at the discretion of the county authorities in each county." (Acts 1937-38, Ex. Sess., pp. 180-181). The above section was declared void by the Supreme Court of Georgia in the case of Black vs. Jones, 190 Ga. at page 95, because the title of the Act was insufficient to show that the counties were permitted to levy such a tax. In 1941 however, the legislature sought to remedy this defect by amending the caption of the Act so as to authorize counties to levy such a license tax. (See, Acts of 1941, pp. 226-228). This amendment was passed after the Supreme Court had ruled in the above stated case. I am sure that you understand that under the law I cannot give you an official opinion on the question involved, since the Attorney General can render official opinions only to the Governor and heads of the various departments of State upon matters pertaining to the operation of the State government. I am glad however, to refer you to the above provisions of law and the case decided by our Supreme Court with the hope that the same will be beneficial to you in making a proper determination of this question. It would be my suggestion that you present this matter to your county attorney, since he is in a position to give you an official ruling in the premises. As requested in your letter, I am sending a copy of this letter to Hon. 0. C. Cochran, Chairman, Board of Commissioners of Crawford County, Knoxville,, Georgia.
PROFESSIONS, BUSINESSES AND TRADES-Businesses (Unofficiail)
i
The Five-Year business license exemption accorded World War II veteran
is confined to named veterans operating a business owned exclusively by
them.
Honorable Arthur K. Bolton
December 28, 1948
I am pleased to acknowledge receipt of your lettef of December 21, 1948
in which you ask the following questions regarding the mterpretation of Section
84-2024 of the Code of Georgia as amended by the Acts of 1947, pp. 1163, 116'4:
" (1) Is the five year exemption, referred to above, confined solely to
World War II Veterans who are individual proprietors of businesses or does it
include business partnerships or corporations owned entirely by World War II
Veterans?
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"(2) Does the statute include a partnership with the controlling interest, over 50 per cent, owned by a World War II Veteran or Veterans?
" (3) Does the statute include a corportion with the controlling shares of stock owned by a World War II Veteran or Veterans?"
I am restricted by law from giving opinions except to the Governor and to the heads of the various State Departments. However, I am always glad to be of assistance to county officials in helping them solve their problems by giving such unofficial information as I can. Therefore, anything that I may say in reply to your letter is to be considered purely as information and not binding upon anyone in any manner whatsoever.
Section 84-2024 of the 1933 Annotated Code, Pocket Supplement provides: "All honorably discharged veterans of the armed services who served in World War II between December 7, 1941 and the passage of this law shall be exempt from State business licenses for a period of five years from the passage of this section." I am a:taching hereto a copy of the Resume and Administrative Construction of the Veterans License Tax Exemption Laws as issued by the State Revenue Department I am also attaching a copy of my opinion of August 15, 1947 in regard,, to the State Income Tax feature of the above resume. I am also attaching a copy of my opinion of November 12, 1947 dealing with the number of employees a veteran may have under a certificate of exemption. In answer to your Question 1., it would appear that the exemption under Section 84-2024 is confined solely to the named veterans who operate businesses owned exclusively by said veterans. It would appear that a partnership is a separate entity from that of a veteran as now under consideration and that a partnership would not be exempted regardless of the percentage of ownership. In answer to your third question, it would be my view t4at a corporation is a separate and distinct entity from that of a veteran under consideration and that regardless of the amount of ownership of stock by a veteran therein, the corporation would not be exempted.
PROFESSIONS, BUSINESSES AND TRADES-Chiropractors The requirement of "a four-year standard college course'' means a fouryear course of 9 months a year. There being no chiropractic school having such standard for gradua:ion, the Board of Examiners must prescribe the criteria upon which determination as to acceptability of courses is to be made.
March 25, 1948 Honorable E. H. Anderson, President Georgia State Board of Chiropractic Examiners
This will acknowledge your interrogatory of the sixteenth of March, 1948, which in substance asks for an official opinion further defining the terminology contained in Code Section 84-507 insofar as it refers to the condition precedent of the completion of "-a four year standard college course . . . " before a person may be licensed to practice Chiropractic in this State.
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The records of this office reveal that on October 6, 1939, an opinion upon this important matter was renderbd to Governor E. D. Rivers by Marshall Allison, then Assistant Attorney General of Georgia. The opinion referred to is to be found on PagE> A-30 of the published Opinions of the Attorney General, 1939-41. That opinion, in construing the words " - four years standard college course - - ", stated that:
''It is very clear from the caption or the title that the intention of the Legislature was to prescribe a four year standard college course, to be four years of nine months each."
The above interpretation of the particular terminology of the statute under consideration was reaffirmed in an official opinion rendered by Honorable Ellis Arnall, then Attorney Gentral of Georgia, dated December 4, 1949, and addressed to Honorable R. C. Goleman, Joint-Secretary, State Examining Boards.
Opinions of the Attorney General, 1939-41, Page 442. In an opinion rendered by the present Attorney General dated March 18, 1946, addressed to Honorable R. C. Coleman, Joint-Secretary, State Examining Boards, the previous construction of the pertinent words was again upheld and reaffirmed. In view of the authority cited, it must be accepted that the opinion of the Attorney General is definitely settled to the effect that the requirement for the completion of a four year standard college course, as contained in the Code, properly means the completion of a four year standard college course of nine months per year. However, your recent request goes beyond the scopE:' of the cited opinions, and you now seek information as to what constitutes such a four year course of nine months each year in the field of Chiropractic education. In your instant letter, you present the following comments: "At the time of the passage of this requirement there was no (Chiropractic) school or college requiring four years of nine months each for graduation. In fact there is probably only one school or college that does not graduate students in less time than that now.... At the time of the passage of this (requirement) all Chiropractic schools and colleges were teaching in terms of a six months year."
I have made sufficient research into the matter to assure mysblf of the correctness of your statements. In fact, I find that only a few Chiropractic schools, a very small minority of them, even at this late datEJ, offer courses of nine months each over a four year period. I have been unable to locate any such institution which requires of its graduates the completion of such a four year ,course. I am persuaded, therefore, that there is not now, nor was there, at the time of the passagE! of the Act under consideration, any such thing in this country as a "standard" Chiropractic course of fours years of nine months each. Since there is no such thing as a standard course of four years, nine months each year, to be found in the field of Chiropractic education, it follows that the criteria upon which any particular course in Chiropractic must be adjudged in reference to the meeting of the statutory requirements must be found somewhere else. This necessarily involves the ascertainment of facts and the applying of those facts by way of a test to the curriculum of each institution whose graduates may seek to become licensed to practice their occupation in Georgia. The General Assembly having set the broad general bounds, it is left to the Board of Examiners in Chiropractic as an administrative function to con-
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elude within the prescribed bounds the criteria upon which the determination as to the acceptability of courses in Chiropractic is to be made.
To illustrate a possible application of the foregoing paragraph by the Board, procedure might be made according to the following analysis:
(1) The Board may find that the standard college course of four years of nine months each is best to be determined by the criteria of the Association of American Schools and Colleges.
(2) That under the rules of that Association it is required for graduation that each studE:nt complete 180 quarter hours; that each quarter lasts a maximum of 12 weeks; that for each quarter hour credit a student must attend one class for one fifty-minute-hour per week per quarter; that thus there are 12 class hours per each quarter hour credit. By multiplying the number of class hours nE:eded for each quarter hour credit by the number of quarter hours required for graduation (12 x 180) it is to be seen that there are a total of 2,160 class hours necessary for graduation from an accredited or standard college.
(3) Determine the number of class hours necessary to be successfully completed in order to graduate from an acceptable Chiropractic college. If more than 2,160 class room hours are required, then the statutory requirements may be deemed by the Board as having been met for in effect the Chiropractic course would then be the equivalent insofar as class kours are concerned of a standard four year college of nine months per each year. This would be true whether the course Eoxtended over four years or for a longer or shorter period. Obviously, the statute concerns itself with time spent in training and not merely with calendar months and years.
I wish to point out that the above illustration is not posed as a directive to the Board nor is it intended to portray the figures used as accurate. As heretofore said, it is exclusively the administrative function of the Board acting within the scope of its statutory authority to a~certain the facts of the requirements of a standard four year college of nine months each and upon the finding of those facts, to apply them as a test to the curricula of the several Chiropractic institutions. The above enumerated steps are intended by me as being merely illustrative of a course which the Board in its discretion might follow. Of course, the Board, if it desires to do so, may so strictly construe the words of thE: statute that it will not consider any person eligible to be admitted to the practice of the Chiropractic occupation unless the applicant shall have completed courses in an institution requiring four years attendance for nine months per year.
It is to be pointed out that while this opinion may modify the_ previous opinions of the Attorneys General upon this matter which have been cited herein, that nEovertheless it is distinguishable from them and does not overrule them.
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PROFESSIONS, BUSINESSES AND TRADES-Chiropractors If the present law of a foreign State is equal to Georgia's law relating to the practice of chiropractic, the State Board may exercise its discretion as to whether to issue a lic6nse under the rules of comity to applicants duly licensed in such other states.
March 26, 1948
Honorable William E. Brown, D. C. Member, Georgia State Board of Chiropractic Examiners
This is to acknowledge your, recent communication wherein you request an official opinion upon the following question:
"Does the Georgia State Board of Chiropractic Examiners have authority to issue a license under the rules of comity to a person licensed to practice in a sister state where these conditions are present:
(1) The sister state now has laws equal in their requirements to Georgia laws.
(2) Where the person now seeking to be I"censed in Georgia by com:ity was licensed in the sister state prior to the passage of the laws equalling Georgia's, but where the license issued prior to the passage of the 'equal requirements' laws is recognized by the said sister state."
In Code Section 84-510 of the Georgia Code of 1933, it is provided that "Persons licensed to practice Chiropractic under the laws of any other state having requirements equal to those of this Chapter, may in the discretion of the Board be issued a license to practice in this State without examination upon the payment of a fee of $50." The Section quoted above authorizes the Board of Chiropractic Examiners under the rul6s of comity or general reciprocity to issue licenses without examination to those persons licensed to practice Chiropractic in other states having requirements equal to those of the Georgia laws. It is to be noted that this statutory authority does not in any sense make it mandatory upon the Board to admit any person from any state under the rules of comity and reciprocity. Generally speaking, comity is neither a matter of absolute obligation on the one hand, nor of mere courtesy and good will upon the other, but it is rather the recognition which one nation or state allows within its territory to the legislative, executive or judicial acts of another state or nation, having due regard to interstate and international convenience and to the right of its own citizens who are under the protection of its laws. Comity involves reciprocity, and it is against the policy of the state to grant to citizens of another jurisdiction privileges from which its own citizens are debarred by the legislative, executive or judicial acts of such other jurisdiction. In other words, comity means that one state will do by courtesy what another state will do under like circ*mstances with a citizen of the former state.
It is my belief that the General Assembly intended by Code Section 84-510 to limit the Board acting within its discretionary authority as to comity only to the extent that the necessary element of equality of laws be present. Further, I am inclined to the opinion that the General Assembly intended by the equality of laws provision to establish the criteria as being those laws in sister states existing and of force as of the time of the submission of the application to the Georgia Board for reciprocity licensing. I do not believe that it was intended that each person seeking reciprocity licensing must have received his license
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under such a law as would be found equal to the GE:orgia, law, but rather that the requirement of equality would be fully satisfied if the present eq'\al law in the sister state would recognize and accept such licenses as may have beE:n previously issued under other and inequal laws in the foreign state. I do not believe that the Board would be; bound to go behind the present laws regulating the practice of Chiropractic in any of the sister states.
In view of all of the foregoing, it is my opinion tha~ the answers to your interrogatories should all be made in the affirmative. If the present law in any foreign state be equal to Georgia's law rE:gulating the practice of Chiropractic, then authority exists for the Board to exercise its discretion to issue a license under the rules of comity to Chiropractors who have been duly licensE:d in such other states.
PROFESSIONS, BUSINESSES AND TRADES-Dental Nurses The Board of Dental Examiners may prescribe educational requirements and issue certificates to practice; as dental nurses.
Honorable R. F. Sullivan Board of Dental Examiners of Georgia
August 9, 1948
This will acknowledge receipt of your letter of August 4, in which you ask the following questions:
"As a member of the Board of Dental ExaminE:rs of Georgia, I would like to have your official opinion regarding Section 84-1009 of the Code of Georgia.
. . . The Board now desires to prescribe educational requirements, give E:Xaminations and issue certificate of licensE:s to persons to practice as dental nurses. May we legally proceed to do so under the present law?"
In an official opinion rendered May 22, 1939, by Honorable Ellis Arnall, then Attorney General, to Honorable R. E. Coleman, Joint Secretary, State Examining Boards, the Code Section of which you inquire was interpretE:d as follows:
"Section 84-1009 of the Georgia Code of 1933, to which you refer in your letter provides in part as follows:
"Provided, tha: applicants for certificates as dental hygienists or dental nurses shall be of good moral character, shall be at least 19 years of age, shall have had such preliminary education and training as may be prescribed by said Board of Dental Examiners, and shall pay to the Joint Secretary, State Examining Boards, a fee of $10 for such examination.'
"This language seems to be too clear to require construction. While the said Code Section does provide that the written examination shall include the subjects of dental anatomy, physiology, bacteriology, dental pathology, sterilization, office routine, and oral hygiene and prophylaxis, it vests in the Board of Dental Examiners the right to prescribe the preliminary education and training necessary for applicants for certificates as dental hygiE:nist or dental nurses.
"It is my opinion, therefore, that the Board of Dental Examiners may permit an applicant who is not a graduate of a Dental School to stand the written examination, if such person has had the preliminary education and training that the Board has prescribed."
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The above excerpt from Mr. Arnall's opinion is contained in Opinions of the Attorney Gtneral, 1939-41.
I see no reason why the Board of Dental Examiners is not authorized, under the above quoted law, to give examinations and issue certificates for dental nurses, provided the applicants meet with the Board's approval, and cor:form to the provisions of the Gode; thtre have been no changes in the law above quoted since the rendering of the opinion as quoted herein by Mr. Arnall to Dr. Coleman.
PROFESSIONS, BUSINESSES AND TRADES-Medical Practitioners Members of the State Board of Medical Examiners are appointed by the Governor with the approval of the Secretary of State and are confirmed by the Senate.
October 13, 1948 Hon. M. E. Thompson, Governor
In r:sponse to your verbal request, I wish to record the fact that it is my opinion that the members of the State Board of Medical Examiners appointed are subject to confirmation by the Senate.
By the Act "of 1943, (Ga. Laws 1943, pp. 212-215) the following State Examining Boards and Commissions were abolished and re-created:
1. State Board of Examiners of Public Accountants. 2. Georgia State Board for the Examination and Rf:gistration of Architects. 3. State Board of Barber and Hairdresser Examiners. 4. Georgia Board of Chiropractic Examiners. 5. State Board of Chiropody Examiners. 6. Board of Dental Examiners of Georgia. 7. State Board of Medical Examiners. 8; Board of Examiners of Nurses for Georgia. 9. Georgia State Board of Examiners in Optometry. 10. State Board of Osteopathic Examiners of Gtorgia. 11. Georgia State Board of Pharmacy. 12. Georgia Real Estate Commission. 13. Stationary Engineers and Fireman. 14. Georgia State Board of Veterinary Examiners. 15. State Board of Registration for Professional Engineers and Land Surveyors. 16. State Board for the Certification of Librarians. All of the above Boards or Comm:issons are subjec; to revision of the 1943 Act referred to above, which requires that the members thereof be appointed by the Governor with the approval of the Secretary of State and shall be confirmed by the Senate.
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PIROFESSIONS, BUSINESSES AND TRADES-Nurses Whill':' a certificate of the Board of Examiners of Nurses is necessary to practice professional nursing "as a graduate or registered nurse", any person may engage in nursing if no such representation is made.
July 23, 1948 Miss Mabel Korsell, R. N. Educational Supervisor Board of Examiners of Nurses for Georgia
I have your letter of July 9 with enclosures, in which you rE:quest my opinion on the following question:
Does the Georgia law make it mandatory for all nurses to obtain Georgia licenses for the practice of their profession?
You state that the A. M. A. Legal Control Fact ShE:et which you enclosed, indicates that licensure is not mandatory in Georgia and that this would seem to conflict with Georgia Code Annotated, Sections 84-9915 and 84-9916, which make it illegal for any person to practice professional nursing "as a graduate nurse or registered nurse" without a certificate from your Board, and which also make it illegal for any person other than a registered nurse to use the abbrE:viation "R.N." or other letters to indicate that the nurse is a graduate or registered nurse.
You have suggested that the Georgia law is permissive and that any person may nurse without registration provided such person does not hold herself out to be a graduate nurse or registered nurse. I concur with this suggestion, and I therefore find no conflict with our law and the statement in the A. M. A. pamphlet. Our law prohibits a person from holding herself out to be a professional or graduate nurse unless such person is registered and licensed with the Board of Examiners, but it does not prohibit a person from engaging in nursing if no such representation is made.
In the absence of the Attorney General, your letter has been r~::ferred to me for answer.
PROFESSIONS, BUSINESSES AND TRADES-Nurses The prohibition against the appointment of persons connected with nuraing schools to the Nurses Board was repealed by intentional omission from the Code.
September 13, 1948 Miss Mabel Korsell, R. N. Educational Supervisor Board of Examiners of Nurses for Georgia
I have your letter of August 30 in which you request my opmwn as to whether or not the provision of the original law governing the practice of nursing, wherein it is stated that none of the members of the Nurses Board may be connected in any way with a training school for nurses, is stillin effect, or has been repealed by omission from the Code.
The original prohibition against persons connect~::d with nursing schools being appointed to the Board was contained in the original Act of 1907 which set up the Nurses Board (Ga. Laws 1907, p. 117). When this law was codified into the 1910 Code, the prohibition in question was included in the Code Section
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(Georgia Code of 1910, Section 1698). When the 1907 Act was repealed and the Board of Examiners of Nurses re-created by the Act of 1927 (Ga. Laws 1927, p. 247) the prohibition in question was again included in the Act. However, when this law was codified as a part of the 1933 Code, the prohibition against nurses connect~:;d with training schools being on the Board was omitted from the Code (Georgia Code of 1933, Section 84-1001).
We must now determine whether or not the omission of the prohibitive clause W!i.$ intentionally made or was made by error or inadvertence. Similar questions have be~:;n several times discussed by our appellate courts. In City of Cochran v. Lanfair, 139 Ga. 249, 258, our Supreme Court said:
"No arbitrary and inflexible rule has been applied to the determination of whether or not an act or a part of an act omitted from the Code was repealed by the adoption of the book. Probably no Procrust~:;an rule can be announced on the subject. The general presumption is that the codifiers codified the laws existing, rather than made new ones. Some changes were undoubtedly made, and were adopted by the legililature. Some were apparently intentionally made, and some were so palpably changed that they negatived the idea of mere clerical omission."
In discussing a similar question, our Court said in Madd,ox v. First National Bank, 191 Ga. 106, 109, "There is one general rule, however, that is always applicable, and that is, to ascertain the intention of the General Assembly.''
And in Clark v. Newsome, 180 Ga. 97, 102 the Court said: "The proposed change must have be~:;n so conspicuous as to demand the inference that it was noticed by the lawmaking body, before the presumption against a change may be overthrown." With the foregoing rules in mind, we must determine whether or not it was the intention of the General Assembly to omit th~:; prohibitive clause in question. We may safely assume that the new section, that is the Section in the 1933 Code, was compared with the old section, that is the comparable Section in the 1910 Code, and that if such a comparison was made the omission of the prohibitive clause in question would be noted by even the most casual reader. It would be extremely difficult to overlook so obvious and important a variation between the two sections, and it is therefore my opinion that the omission of the prohibitive clause from the 1933 Code was intentionally made. If this interpretation, that is that the omission was intentionally made, is accepted, then the statute (Ga. Laws 1933, p. 31; Ga. Laws 1935, p. 85; Ga. Code 102-101) adopting and making effective the 1933 Code necessarily sanctioned the omission and thereby repealed the prohibitive clause. It is my opinion that such a repeal took place, and that the prohibition is no longer in effect.
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PR!OFESSIONS, BUSINESSES AND TRADES-Nurses A member of the Board of Examiners of Nurses is entitled to ac:ual expenses while in attendance upon mtetings of the Board, their legal per diem and actual traveling expenses.
November 30, 1948 Honorable R. C. Coleman Joint-Secretary State Examining Boards
Your letter of NovembH 19, 1948, received, in which you request me to advise you concerning the laws which pertain to the Board of Examiners of Nurses of Georgia as to the per diem of members of the Board for every day it is necessary for that member to be away from her work in order to attend Board mE:etings.
Code Section 84-102, reads in part as follows: " ... The expenses of the members of the various boards shall be limited to actual expenses while in attendance upon the meetings of said respective boards, their legal per dif:m, and actual traveling expenses . . . " Code Section 84-1003, reads as follows: "The members of the Board of Examiners of Nurses shall be entitled to receive out of the funds accruing from the application fees herein provided, not less than $6.00 per day for each day actually engaged in the service of the board, and all expenses contemplated by Section 84-102. All payments out of such funds or any funds of the board shall first be approved by the presiding officer of said board."
PROFESSIONS, BUSINESSES AND TRADES-Nurses The granting of a license, rather than delivery of the cE:rtificate, determines the right to practice nursing.
June 14, 1948 Miss Mabel Korsell, R. N. Educational Supervisor Board of Examiners of Nurses for Georgia
I have your letter of May 20, in which you requE:st my opinion on the following situation:
Mrs. Violet Duckworth applied for a license for professional nursing on February 21, 1948, basing her application on reciprocity with North Carolina. On April 14, the Board of Examiners of Nurses for Georgia grantE:d her a license. The certificate evidencing her right to practice nursing was mailed to her but was returned, unopened and unclaimed, by the postoffice. TherE:after, the Federal Narcotics Bureau informed the Board that Mrs. Duckworth had been convicted of the violation of the narcotic laws in Montgomery, Alabama, on May 5, 1948, and had been sentenced to serve seven months. You request my opinion as to whether or not the license granted Mrs. Duckworth may be revoked summarily, inasmuch as it was never delivered to her, or if it will be necessary to rE:voke the certificate through the procedure set out in Georgia Code Annotated, Section 84-1014, which provides for notice and hearing, etc.
It has been several times held by the Georgia courts that the granting of a
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commiSSIOn to a public officer after his election or appointment is merely a ministerial function and not a prerequisite to th occupation and execution of the office. It seems to me that these cases are somewhat analogous to the instant situation, and that it is the action of the Board granting the license rather than the mere physical delivery of the certificate which authorizes a nurse tci practice her profession.
It is therefore my opinion that the best procedure would be to comply with th provisions of Code Section 84-1014. This method has the additional advantage of preventing any further repercussions or legal questions from arising from this case.
It is my suggestion that if the person in question should be found to be 'practicing nursing in Georgia pending the hearing on the revocation of her license, that some affirmative action be takn by the Board to acquaint whatever institutions or persons she might be serving with her record.
PROFESSIONS, BUSINESSES AND TRADES-Optometrists The State Board of Examiners may properly include as part of the application for examination the Code of Ethics of the American and Georgia Optometric Associations, as well as the policy that violations thereof constitute conduct warranting rvocation of license.
March 26, 1948 Honorable W. R. Wilson, Sr., 0. D. Georgia State Board of Examiners in Optometry
This is to acknowledge your recent communication to which you attached a copy of the application for examination as it is now required of applicants for licensing to practice optometry by the State Board of Examiners in Optometry. You request an official opinion as to whethbr or not the Code of Ethics of the American and Georgia Optometric Associations may be properly incorporated as a part of said application.
I find that in Code Section 84-1110, Georgia Code of 1933, the following authority has been granted by the General Assembly to the Georgia Stat Board of Examiners in Optometry:
"The Board of Examiners in Optometry shall refuse to issu its certificate of registration and may revoke its certificate of registration issued to any pers-on .... who is guilty of highly unprofessional conduct' . .' .. Provided, that in all such cases the Board shall serve written notice of the charges on such accused person, etc."
It is my opinion that the General Assembly by its passage of the above quoted portion of Code Section 84-1110 dfinitely presented bounds within which the administrative discretion of the Georgia State Board of Examiners in Optometry might be exercised in refusing to issue certificates of registration and to revoke such certificates of those persons guilty of highly unprofessional conduct. The Gneral Assembly, having prescribed the grounds upon which the revocation of licenses might be made, did not go so far as to define what would constitute highly unprofessional conduct. Obviously, the General Assembly considered that trained optometrists would be in a much better position to determine the constituent elements of highly unprofessional conduct than would the large body of lay-legislators.
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Accordingly, it is my opinion that by rule or regulation the Georgia State Board of Examiners in Optometry might well include in its application the Code of Ethics of the American Optometric Association and the Code of Ethics of the Georgia Optometrists, and include under their rule-making authority and powers the policy in substance to the effect that violations of the two Codes of Ethics would be deemed by the Board as constituting highly unprofessional conduct under which its lawful authority to revoke its certificates of rE:gistration might be exercised.
I wish to point out that it may be that the authority granted to the Georgia State Board of Examiners in Optometry regarding the revocation of licenses may be open to attack on constitutional grounds. However, in this opinion, I have proceeded upon the ground that in accordance with the general rule regarding the general interpretation of statutes, all statutes enacted by duly constituted legislative authority are deemed to be constitutional until proven otherwise.
PROFESSIONS, BUSINESSES AND TRADES-Optometrists 1. The Board of Examiners in Optometry may delegate one of its members as an investigator, but without affirmative powers. 2. The Board may not delegate to any member powers to act on findings of investigators.
September 21, 1948
Honorable R. C. Coleman Joint Secretary State Examining Boards
This is an acknowledgment of your inquiry of September 15, 1948, as to whether or not the Board of Examiners in Optometry is empowered to delegate its investigative powers to Dr. L. N. Huff, member of the Board.
Unquestionably, the State Board of Examiners in Optometry, for so long as they act within their discretionary and administrative powers, may perform such acts as may be necE:ssary to the performance of their duties. Quite conceivably, investigations relative to unethical practices in the field of optometry would come within the scope of their exercisable powers. However, the Code places restrictions upon the Board insofar as the expenditure of money is concerned, and I do not believe that the Board would be empowered to expend funds for investigative purposes if by so do!ng they would exceed the money received by them for licenses issued.
It is my opinion the Board could designate one of its members to act as an investigator for the Board, but I do not believe that the Board would be E:mpowered to give to this investigator any affirmative power whatsoever. It is further my opinion that investigations made by the investigative agent of the Board would be on a voluntary basis as opposed to a compulsory process. By this I mean to say that the investigatees would not be bound to submit to an investigation but that all investigations would have to be made subject to the voluntary acceptancE: of the investigatees.
It is further my opinion that the Board may not delegate to any of its members power to act upon the findings of investigators, nor may it authorize any of its representatives to threaten or to bring pressure to bear upon any party or groups of persons being investigated.
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PROFESSIONS, BUSINESSES AND TRADES-O&teopaths Druggists may not fill prescriptions :for osteopaths except for drugs controlled by the Harrison Narcotic Act, and then only for alleviation of pain.
November 12, 1948
Hon. P. A. Horkan Chief Drug Inspector Georgia State Board of Pharmacy
I am in receipt of your letter of recent date, in which you state your desire for my opinion as regards the filling of prescriptions for osteopaths by druggists.
The form letter which accompanied your request presented two other situations which I shall deal with first. Should patients be allowed drugs without prescriptions? I think no explanation is needed when I say the answer is no. Should prescriptions be filled for chiropractors? The answer to this question is found in the last sentence of Gode Section 84-509 as follows:
"... Chiropractors shall not prescribe or administer medicine to patients, perform surgery, nor practice obstetrics or osteopathy.''
As to the main question, I quote from an opinion rendered September 22, 1939, by the Attorney General as follows:
"Under the Medical Practice Act of this State which is codified as Chapter 84-9 of the Code of Georgia of 1933, the practice of medicine is defined, and the practice of medicine without a license is prohibited, except in certain well defined instances and under certain conditions. Section 84-906 of this chapter clearly exempts 'osteopaths, not prescribing medicines or adm~nistering drugs' from the requirements of the statute. So, when an osteopath does prescribe medicines or administer drugs he is no longer exempt from the requirements of chapter 84-9 and in order to administer drugs or prescribe medicines legally he must have a license duly issued by the State Board of Medical Examiners.
"'Aside from this consideration, we find that the statutes with reference to the licensing of osteopaths as codified in Chapter 84-12, restrict the licensee under said statutes to the practice of osteopathy' as taught and practiced in the legally incorporated and reputable colleges of osteopathy as provided for in this Chapter. This staute was enacted in 1908, and must be construed as authoriz~ng the practice of the system of osteopathy and 'as taught and practiced in the legally incorporated and reputable colleges of osteopathy' at the time the statute was passed. State ex rei. Beck, vs. Gleason, 148 Kan. 1; 79 Pac. (2d) 911 (6). Under this construction, the use of drugs by osteopaths is prohibited for the reason that at that time instruction was not given in materia medica, apd the science of osteopathy was regarded and practiced as a 'drugless art,' adherents cf said profession being opposed to the use of drugs, at the same time proclaiming the superiority of a treatment consisting of treatment by manipulation applied to various nerve centers, rubbing, pulling, and kneading parts of the body, flexing and manipulating the limbs, and the mechanical readjustment of any bones, muscles, or ligaments not in the normal position, with a view to removing the cause of the disorder and aiding the restorative force of nature in cases where the trouble originated in misplacement of parts, irregular liver action or defective circulation. See Black's Law Dictionary, Third Edition, Page 1304."
An Act to further regulate the practice of osteopathy was passed in 1941 and may be found in Georgia Laws 1941, page 352. This act amended Code
33.0
Section 84-1209 by adding the following: "Provided, however, osteopaths shall be authorized for the alleviation of pain only to use, mix, prepare, dispense and administer certain narcotic drugs, to-wit, those narcotic dnigs or their derivatives, the sale or dispen.sing of which is regulated by the Federal Act known as "The Harrison Narcotic Act", as amended, said Act being set out in the 26th U.S.C.A. Int. Rev. Code, Section 3220 et seq."
The question then arises as to whether or not this amendment would open up the entire field of prescriptions to osteopaths. I think not. The amendment itself would refute this supposition in that it states, " .... for the alleviation of pain only to use, mix, prepare, dispense and administer certa,in narcotic drugs ... " All through the 1941 Act, it is plain to see that the intent of the legislature was to permit osteopaths to prescribe only those drugs controlled by the Harrison Act and then only for the alleviation of pain.
It is my studied opinion that pharmacists should not fill prescriptions for osteopaths other than those for drugs included in The Harrison Narcotic Act.
PROFESSIONS, BUSINESSES AND TRADES-Pharmacists An alien may take examination for a license as a pharmacist but may not be licensed until he has become a citizen.
February 2, 1948 Honorable T. S. Dean, President Georgia State Board of Pharmacy
This is to acknowledge your letter of January 28, 1948. In your communication referred to you present the following question:
"May a person meeting all requirtments other than that of citizenship be permitted to take the examination required as a prerequisite to being licensed as a pharmacist?''
From an examination of the statutes governing the licensing of pharmacists, it is my opinion that there is no prohibition against permitting aliens to undergo the examination required as a condition precedent to securing a license to practice pharmacy. However, it is to be noted that Code Stction 84-1322 of the 1945 Cumulative Pocket Part of the Georgia Code of 1933 specifically precludes the licensing to practice pharmacy in this State of any person who is not a citizen of the United States. This Gode Section reads in full as follows:
"The State Board of Pharmacy Examiners shall not issue a license to practice pharmacy in this State to any person who was not born or naturalized in the United States, or who is not a citizen of the United States."
It is thus to be seen that while the Georgia State Board of Pharmacy may allow an alien to take the examination, assuming that the alien be successful in the examination, nevertheless he may not be issued a license to practice pharmacy in Georgia until he has become a naturalized citizen of the United States. The fact that an alien is not a citizen would remain as a bar to his being issue:d such a license. However, upon the subsequent removal of the disability by naturalization and becoming a citizen of the United States, the Board could issue a license to the former alien to practice pharmacy in Georgia upon the strength of his previous successful passing of the examination and the meeting of all other requirements.
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PROFESSIONS, BUSINESSES AND TRADES-Pharmacists The State Board of Pharmacy may confine the sale of insulin to pharmacists under a physician's prescription, but iodine and Lysol may be sold in unbroken packages by various stores.
September 15, 1948
Honorable R. C. Coleman Joint Secretary State Examining Boards
I am in receipt of your request in behalf of the State Board of Pharmacy for a ruling as to whether it is permissible for general stores such as grocE:ry stores, department stores, and sundry stores to legally handle and offer for sale iodine, lysol, and insulin under the pharmacy laws of Georgia.
Code Section 42-709 enumerates a list of drugs to be sold only on a prescription of a duly licensed physician as defined by this law and such prescription shall b compounded only by a registered pharmacist in accordance with the laws of this State. This section does not list insulin.
However, Code Section 42-709 provides:
"... or such other drugs which are now or hereafter declared dangerous by the Federal Food and Drug Administration, and which are, in the discretion of the Georgia State Board of Pharmacy, classified as 'dangerous drugs' within the meaning of this law ..."
Code Section 42-717, provides:
"... This law shall be construtd in the interest of public health and shall not be construed to prohibit the sale by merchants of home remedies not poison, or the sale by merchants of preparations commonly known as patent or proprietary preparations when sold only in the original and unbroken packages; ..."
By reference to Code Section 21-356 of the United States Code Annotated it is to be found that the Federal law goes into some detail as to the regulations which may be promulgated by the Federal Security Administrator as to the certification of drugs which may be composed wholly or partly of insulin. The UnitE:d States Code Section referred to states, in part, as follows:
"(a) The Federal Security Administrator, pursuant to regulations promulgated by him, shall provide for the certification of batches of drugs composed wholly or partly of insulin."
In view of the United States Code Section referred to, the presum,ption seems clear that the Federal government, by implication, has declared insulin to be a "dangerous'' drug. This being so, the drug insulin would be brought within the Georgia Code Section 42-709 so as to allow the Georgia Sta;e Board of Pharmacists to classify the drug as "dangerous", and thus bring it within the provisions of State law. By this, I mean that the Georgia State Board of Pharmacists may declare that insulin can be sold only on a prescription of a duly licensed physician, and that the prescription shall be compounded or sold only by a registered pharmacist.
On the other hand, it seems to me that, in reference to the drugs iodine and lysol, they may be classified properly within the category commonly known as patent or proprietary preparations. Hence, the sale of iodine and lysol, if sold in the original and unbroktn packages, may be sold by grocery stores, depart-
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ment stores, and sundry stores. I do not believe that these two drugs, i.e., iodine or lysol, are of such a nature as to com!e within the provisions of Section 42-717 of the Georgia Code, so as to place in the Georgia State Board of Pharmacists the authority to declare them to be "dangerous drugs", and thus make them salable only by registered pharmacists.
PROFESSIONS, BUSINESSES AND TRADES-Photographers (Unofficial) The Act ('Ga. L. 1937) regulating the photographic business has been declared unconstitutional.
January 27, 1948 Mrs. Harriet St. John
Reference is made to your recent inquiry as to whether or not the Act establishing a State Board of Examiners for Photographers and for the regulation of the photographic business has been declared unconstitutionaal by the Supreme Court of the State.
Pleased be advised that the AttornE:y General is precluded by law from rendering official opinions upon legal matters to persons other than the Governor and the heads of the several State Departments. In view of this fact, it is therefore necessary that I advise you that any opinion expressed hE:rein is entirely unofficial and, as such, is not binding upon any person or upon this office.
Please be further advised that the Act of the General Assembly, approved March 25, 1937, Georgia Laws 1937, Page 280, establishing a State Board of Photographic Examiners and providing, among other things, that persons desiring to engage in the business of photography m;ust stand an examination and thereby qualify as to competency, ability, and integrity has been declared unconstitutional in the case of Bramley v. The State, 187 Georgia 826.
PROFESSIONS, BUSINESSES AND TRADES-Real Estate Brokers and Salesmen
1. Where a real estate broker holds a license through a firm, the license belongs to the firm. 2. Should such broker sever his connection with the firm he must pay a fee of $25. for a license. 3. If the firm designates another broker to represent it, he operates under the original license to the firm.
August 10, 1948 Honorable R. G. Coleman Joint Secretary State Examining Board
This is to acknowledge your communication in which you request an official opinion upon the following four questions:
1. If a real estate broker holds a license through a firm or organization, such as a bank or loan institution, does the license belong to the broker or to the firm?
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2. In the event the broker severs his connection with that firm, is the broker entitled to be licensed in another name, without additional fee?
3. In the event he is not entitled to a license without additional fee, what fee must he pair for a full year?
4. In the event the firm designates another broker to represent it in real estate transactions, what fee, if any, must the firm pay?
I shall present my opinions upon the four question~ rais"d by :V<>ll in numerical order below. I desire to add here that the Code Section from which my opinions to your inquiry are to be derived is to be found in Georgia Code' Annotated in Code Section 84-1415, which reads in full as follows:
"Fees for licenses.-The fees for licenses shall be as follows: (1) For a broker's license the annual fee shall be $25. If the licensee is a corporation the license issued to it shall entitle one official or representative thereof to engage in the business of a real estate broker within the meaning of this Chapter. For all other officers or representatives of a licensed corporation who shall engage in the business of a real estate broker within the meaning of this Chapter the annual fee shall be $10.
(2) For a salesman's license, the annual fees shall be $5. All applications for license shall be accompanied by the license fee herein provided. All licenses shall expire upon the 31st day of December of each year."
1. It is to be perceived from the language of the quoted statute that corporations or partnerships desiring to have one of its officials or representatives act as a real estate broker may have a broker's license issued to it upon the payment of an annual fee of $25.00. Additional brokers' licenses are issuable to the corporation or partnership upon the payment of a $10.00 fee for each such additional license. It seems to me to be especially significant that the language of the Code states that such licenses are issued "to'' the applying corporation or partnership. Nowhere is it stated or implied in the Code that such licenses are issuable to the representatives of the corporation or partnership in the individuals' private capacities. Obviously it is a vested license right in favor of the corporation or partnership which is gained by the business entity upon the payment of the initial fee of $25.00. This right is not personal to the one operating under its authority, but the business entity is free at will to designate anyone of its qualified officials or representatives to perform under it. For so long, then, as only one' official or representative at a time of a corporation or firm is designated by the business entity to exercise the rights available under the license, the latter may, in their discretion, change at will the personalities exercising such functions. No matter how vacated, the license right remains with the business entity and is its property throughout the life of the license. This analogy applies with equal effect to the additional licenses for which a fee of $10 each is charged.
2 and 3 In order to conform with my opinion expressed above, it naturally follows that any individual vacating the use of a license owned by a corporation or partnership takes none of the privileges or benefits of that license with him, and hence would be subject thereafter to the full payment of the license fee to be exacted in the same manner as if he had never performed duties under the business entity's license.
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4.
As it is my belief and opm10n that corporations or partnerships own the licenses issued to them and are entitled, under the authority of the law, to change at will their officers or representatives operating under the authority of such licenses, it naturally results that no additional license fee would be chargeable to them upon their designating successive officials or representatives to function under the licenses.
PUBLIC DEFENSE-Military Dept. (Unofficial) The Adjutant General, in his discretion, is authorized to dismiss employee of the Military Department.
NovEmber 22, 1948 Mr. Siegvart J. Robertson Attorney at Law
I am in receipt of your recent letter in which you request my opmwn as to whether the Military Department of the 5tate of Georgia is legally authorized to discharge one of its employees without notice and for no stated cause.
You are aware, I am sure, that undtr the laws of this State, I am prohibited from rendering official opinions to anyone except the Governor and the several Department heads; so the ensuing remarks are necEssarily unofficial and not binding on anyone.
I find the Code Section 86-501 of the 1933 Annotated Code the following sentence:
(The Adjutant General) ... "shall have an Assistant Adjutan: General, United States property and disbursing officer, and such other commissioned assistants and employees as may be necessary, and they shall be selected and employed by the Adjutant General and perform such duties as may be required of them, and he shall fix their salaries."
I further find that the Military Department is not one of those Departments or Agencies of the State of Georgia namEd in Code Section 40-22 of the 1933 Annotated Code as coming under the Merit System, so that the dismissal of an employee of the Military Department would not be governEd by Code Section 40-2208.
This letter does not purport to treat with the policy of the Military DEpartment in discharging an employee without notice or stated cause, but it is my opinion that the Adjutant General is legally authorized to dismiss an employee of the Military Department in his discretion, pursuant to Code Section 86-501, supra.
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PUBLIC DEFENSE-National Guard
1. All officHs and enlisted men in the State militia are exempt from road duty and street tax during service.
2. 'Special pay members', a limited class, for a stipulated annual fee are exempt from road duty, street tax and jury duty.
January 28, 1948
Brig. Gen. Alpha A. Fowler The Adjutant General Military Department
I have your letter of January 27th in which you rE>quest my opinion as to the construction of Code Section 86-701 (Ga. Laws 1916', page 185). The section reads as follows:
"Every officer and enlisted man of the organized military forces shall be exempt from road duty and street tax during the time of his service. Each company of the State military forces shall have the privilege of bearing upon its roll a class of membership, not to 0xceed 30 in number, to be known and designated as 'special pay members', who, upon paying a sum <>f money prescribed by said company, not less than $25 per annum, to said company, shall be exempt from jury duty, road duty and street tax, so long as membership is continued. Certificates of membership shall be prepared and signed by the company commander, and delivered to each of the special pay members of the company, and, when produced in any court, shall be evidenc~ of the right of the holder thereof to the exemptions herein granted."
This section is still in force and in my opinion its terms are clear and unambiguous. It provides two classes of exemptions:
First, it exemiiJts every officer and enlisted man of the organized military forces of the State from road duty and street tax during the time of his service. It does not exempt the officers and enlisted men from jury duty. The reason for this is that it is a primary rule of statutory construction that,
"Where a form of conduct . . . . . and the persons and things to which it refers are affirmatively or negatively designated (in a statute), there is an inference that all omissions were intended by the Legislature."
Sutherland on Statutory Construction, Vol. 2, page 412.
Since two exemptions are sp0cifically stated all others are thereby negatived.
Second, the section provides for a special class of membership, not to exceed thirty in each company, to be known as "special pay members'', who upon paying a sum of money prescribed by thE: Company, not less than $25.00 per annum, shall be exemp~ from jury duty, road duty and street tax, so long as such membership is continued. The statute does not set a maximum assessment for such membership, and it is my opinion that it may be set at a figure
higher than $25.00.
It is my opinion that echlons of company size are included by this section,
even though they may not be titled "Company". For example, a field artillery
I
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battery would qualify.
You will note that such special pay members are granted the exemption
from jury duty which the other members do not have.
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The special pay members are to be given a certificate signed by the Company Commander evidencing their membership and exemptions. I am attaching herewith a suggested form for such certificate; it may, of course, be embellished by such letter head or declaration as you desire.
PUBLIC DEFENSE-National Guard Neither the Governor nor the Unit Commanders may utilize the services of the sheriff to enforce attendance of members at drills, etc., but upon failure to appear at a subsequent court martial, or after conviction by a court martial, arrest by the sheriff would be proper.
June 25, 1948
Honorable Charlie F. Camp Colonel, AGD, Ga. NG Asst. AdJutant General Military Department
I have your letter of the 11th inst. in which you requE>st my opinion as to the correct procedure to be followed by National Guard Units to utilize the authority granted by Georgia Code Section 86-802. The Section is as follows:
"The Go\l'ernor or the commanding officE>r of any regiment, battalion or company, may enforce the attendance at any drill, encampment, or other duty of any officer or enlisted man of his command, and may use such force as may be necessary."
It is my opinion that the Governor or the Unit Commander may legally direct or order subordinate National Guard officers or enlisted men to seek out National Guardsmen who are wrongfully absent from any drill, encampment, or other duty and bring them to such duty. To accomplish this end, the Governor or Unit Commander is authorized by the above quoted Section to "use such force as may be necessary." It is impossible for me to define the exact meaning of the words "such force as may be necessary." These words import a broad discretionary power which is granted to the Governor or Unit Commander, and this power must in all cases be used reasonably, as indeed all discretionary powers of military officers must be used.
You statE>' in your letter that a Unit Commander of the Georgia National Guard, acting under the provisions of the above quoted Section, attempted to have two enlisted men of his command placed under arrest for failure to attend Armory Drill. The Unit Commander requested the Sheriff of Fulton County to arrest and hold these personnel ptnding court-martial action by his Unit. The arrest was made, but due to the absence of an authoritative interpretation of the above Section, the arrested soldiers were subsequE>ntly set free. You request information as to the correct procedure to follow in cases of this nature.
It is mry opinion that Code Section 86-802 does not authorize the Governor or Unit Commanders to utilize the services of the several Sheriffs or other law <nforcement officers of this State for the purpose of enforcing attendance of National Guardsmen at drill or other duties. My interpretation of the Section is that it furnishes Commanders with the authority to utilize the services of National Guard personnel only to implement its provisions.
The mere absence from drill or other duty by a National Guardsman is not in itself criminal. Until a competent court-martial has declared the absence to
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have been illegal and found the individual guilty of an infraction of mili. ary law, the absence is not criminal and the absentee is not a fugitive, and therefore not subject to arrest by a Sheriff or other law enforcement officer.
When criminal charges have been prope:rly made and served upon a National Guardsman, ordering him in writing to appear before a court-martial and he fails to so appear, the president of the court-martial or the summary court officer may issue a warrant for the arrest of such soldier and this warrant should be properly executed by any Sheriff or other law enforcement officer authorized to execute warrants.
This procedure is set out in Code Section 86-1201 paragraph 6, which reads in part as follows:
"Presidents of courts-martial and summary court officers shall have the same power to issue warrants to arrest persons and to bring them before the court for trial whenever such persons shall have disobeyed an order in writing from the convening authority to appear before such court, a copy of the charge or charges having been delivered to the accused with such order, . . . as is possessed by the civil courts, . . . "
It is my opinion that the execution of arrest warrants as set out above should properly be accomplished by the Sheriff having jurisdiction of the accused exactly as he would execute a similar warrant issued by a State court. I am sure that all of the Sheriffs of our State will willingly cooperate with National Guard courts-martial in the execution of such arrest warrants.
PUBLIC FINANCE-Bonds (Unofficial) The proceeds of a bond issue are required to be spent in accordance with the terms of call.
July 1, 1948 Mr. W. H. Hurst
I have your letter of June 25 concerning a recent school bond issue in Meriwether County. You ask my opinion as to how much of this bond issue must be legally allotted to Colored schools.
I regret that the law prohibits me from rendering official opinions to anyone other than the Governor and heads of the various State departments. However, as a matter of general informa".ion, the proceeds of a bond issue are required to be spent in accordance with the terms of the original call upon which the bonds are voted.
It is my suggestion that you confer with the proper county authorities if for any reason you feel that the proceeds of the bond issue are not being properly expended.
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PUBLIC HEALTH-Indigent Patients (Hoapitals) A tubercular patient who states that he cannot pay for treatment in the State Sanitarium is classed as indigent and is cared for by the State Board of Health.
May 21, 1948 Miss (/amille May Health Educator Georgia Tuberculosis Association
I have your letter of May 20 in which you request certain information concerning the laws covering tuberculosis control in Georgia.
As you know, I am prohibited by law from rendering official opinions to anyone except the Governor and heads of the various State departments, therefore, the following remarks are entirely personal, unofficial, and not binding on anyone.
Inasmuch as your questions seem to be confined to the laws rtlative to tuberculosis control, I shall restrict my answer accordingly.
You request the definition under Georgia law of the word "indigent.'' Insofar as the laws relativt to tuberculosis control are concerned, there is no statutory dtfinition of "indigent." The Georgia Code, Section 35-403, provides that the State Sanitorium shall have a department for the treatment of indigent patients. Section 35-405 provides that the Board of Control, which is the State Board of Health in Georgia, shall make all rules and regulations necessary for the maintenance and operation of the State Sanitorium. This Board under such authority and as an administrative policy rather than a written regulation, defintS as indigent any person who states that he cannot pay for treatment in the sanatorium.
Your second question is: "Who determines when a tuberculosis patient is an indigent?" As above stated, the person himself makes the determination by stating on his application whether or not he :s able to pay for trea:ment. The Board makes no further invtstigation but accepts without question the information on the patient's application. Your third question is: "What political subdivision is responsible for care of the indigent?" Indigent tubercular patients are cared for by the State Board of Health of Georgia. Non-tubercular indigent persons are cartd for by the State and County Departments of Public Welfare.
PUBLIC HEALTH-Hos.pitals (Unofficial) Permission for an autopsy in the event of death may be, secured by a hospital by contract with the patient or with relatives having a quasi-property right.
February 18, 1948 Dr. Alfred E. James Secretary of Staff Phoebe Putney Memorial Hospital
I have your lttter of February 11th in which you request my opinion on the following question:
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"Is there any legal way by which the acceptance of charity hospital service by a patient and his family can be made to include the permission for autopsy in the event of death"?
Please be advised that the Attorney General is prohibited by law from rendE:ring official opinions to anyone except the Governor and the heads of the various State Departments; therefore, this is to be considered as a strictly personal opinion and unofficial and not binding on any one.
It is the general rule of law in Georgia that the husband or wife or next of kin of a deceased person has a quasi property right in the body of the decedent which ".... includes the right to have the body delivered to such entitled person in the same condition in which it was when death supervened". (Pollard re,ceiver v. Phelps, 56 Ga. App. 408, 415). Since this right is one to property it may be relinquished by those persons holding the right by contract.
For advice on the drawing and execution of such contracts, I suggest that you consult your city or county attorney. It would also seem to be possible for the patient to enter into a contract as to the disposition of his body after death. Again, I refer you to your city or county attorney for advice on the preparation of such contracts.
A further intervening factor is the legal relationship of your hospital to the city and the county. Since I do not have information as to this relationship, I dffer no opinion, but merely direct your attention to the question.
PUBLIC HEALTH-Hospitals (Unofficial) Privately owned hospitals and clinics have not been the subject of special legislation.
September 23, 1948 Mr. Roy E. Hitchco*ck Architect
This will acknowledge receipt of your letter dated September 15, 1948, in which you state your desire for information as regards laws governing the construction of buildings of the nature of privatE:ly owned hospital and clinics.
You state that you are aware of all building safety codes and the standard building codes. Inasmuch as no special legislation has been enacted with reference to the type building in which you are interested, I am of the opinion that your compliance with the usual codes will satisfactorily fulfill the necessary requirements. As you doubtless know, some of the various codes make particular reference to hospitals.
I particularly call your attention to the Building Exits Code and that of the National Board of Fire Underwriters as being of great importance. I also suggest that you contact the Athens Gity Engineer for discussion of your particular problem.
As the Attorney General is prohibited by law from rendering official opinions to pE:rsons other than the Governor and heads of the various State departments, this letter must be considered as merely my personal views on this subject.
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PUBLIC HEALTH-Hospitals 1. The State Department of Public Health has authority to receive and transmit Federal funds to local government agencies for construction of hospitals. 2. Public health authorities have authority to contract with local hospital authorities for construction of hospitals. 3. The State Department of Public Health has authority to contract direct with hospital authorities for the construction of hospitals.
December 16, 1948 Hon. T. F. Sellers, Director Department of Public Health
I am pleased to acknowledge your letter of December 8th, in which you ask several questions relating to the authority of the State Department of Public Health to receive and disbuse Federal funds, under the provisions of the HillBurton Act, to local governmental agencies for the construction of hospitals.
The authority of the State to disburse Federal funds is recognized by Section 2-6202 of the Constitution. The Legislature is an Act approved February 1, 1946, (Ga. L. 1946, pp. 34-39) also authorized the State Board of Health to deliver to any hospital authority created by or under authority of the General Assembly or any county or municipal corporation of this State any funds made available to the State Board of Health by the Federal government.
I am therefore of the opinion that the State Department of Public Health has authority to receive Federal funds for the above stated purposes, and to transmit such funds in conformity with the above laws.
You also ask whether or not local health departments have authority to contract with local hospital authorities for the construction of hospitals.
This question is answered by Section 2-5901 (c) of the Constitution which provides in part as follows:
"Any city, town, municipality or county of this State, or any combination of the same, may contract with any public agency, public corporation or authority for the care, maintenance and hospitalization of its indigent sick, and may as a part of such contract obligate itself to pay for the cost of acquisition, cOOlstruction, modernization or repairs of necessary buildings and facilities by such public agency, public corporation or authority, and provide for the payment of such services and the cost to such public agency, public corporation or authority of acquisition, construction, modernization or repair of buildings and facilities from revenues realized by such city, town, municipality or county from any taxes authorized by the Constitution of this State or revenues derived from any other sources."
You also ask whether or not the State Department of Public Health, in the absence of a local health department, has the right to contract direct with hospital authorities for the construction of hospitals within the purview of the HillBurton Act. This question is answered by Section 2-5901 (a) of the State Constitution which provides as follows:
"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,
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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."
You do not outline a particular procedure in your letter or give specific facts relating to the proposed plan of operation for transmitting such funds to the local health authority. In the absence of such specific facts, I can only direct your attention to the provisions contained in Section 2-5901 of the State Constitution with the statement that the authority of the State Board of Health in matters of this character should always be tested in the light of these sections of the Constitution. Stince Section 2-5501 of the Constitution recognizes the right of the State to spend tax money for "public health purposes," such funds may be spent as directed by the General Assembly within the limits prescribed by the Constitution as set forth in this opinion.
I understand that your request for an official opinion on a rather similar question under date of November 24th, has now been withdrawn and that the questions submitted in your letter of December 8th are in lieu of the former quE";stions.
PUBLIC HEALTH-Hospitals Neither the State Treasurer nor the State Department of Public Health has authority to receive or disburse Federal funds to private hospitals.
December 30, 1948 Hon. T. F. Sellers, Director State Department of Public Health
I am pleased to acknowledge your letter of December 27th, in which you ask for an official opinion on the following question:
"Does the State Treasurer or the State Department of Public Health have the authority to receive and disburse Federal funds, under the provisions of the Hill-Burton Act, to private non-profit hospital associations, or corporations"?"
This opinion should be considered as supplemental to my official ruling to you under date of December 16, 1948, relative to the proper channelling of Federal funds to local governmental agencies for hospital construction. In that opinion however, I did not deal with the authority of the State Treasurer or State Department of Public Health to disburse Federal funds to private non-profit hospital associations or corporations.
Under the provisions of Section 2-5901 of the State Constitution which authorizes contracts by the State with public agencies and public corporations or authorities, it will be noted that such contracts are not ex~ended to private corporations or associations.
I also call your attention to Section 2-5402 of the Constitution which reads in part as follows:
"The General Assembly shall not by vote, resolution or order, grant any donation or gratuity in favor of any person, corporation or association."
In view of the above provisions of the Constitution, I am of the opinion that the State Treasurer and the State Department of Public Health are without authority to receive and disburse Federal funds under the provisions of the Hill-Burton Act to private non-profit hospital associations or corporations.
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PUBLIC HEALTH-Vital Statistics (Unofficial) Upon proof of legitimation, new. birth certificate will be issued in name of legitimated child.
July 30, 1948 Mrs. Sidney Farrar John E. Jackson & Baldwin J. Allen Attorneys at Law
In the absence from the State of the Attorney General, your inquiry of July 28, 1948, has been referred to me for reply. You request information pertaining to Georgia law governing the changing of a name on a birth certificate under circ*mstances as outlined in your letter.
The Attorney General is prohibited by law from giving official opinions to anyone other than the GovE:rnor of the State and the heads of the various State Departments, the subject matter of which must pertain only to policies of State Government; the information contained herein is, therefore, an expression of the writer's personal opinion only, and is not to be binding upon anyone.
Section 88-1125 of the 1933 Code of GE:orgia (1947 Supplement), provides:
"In cases of legitimation, the Division of Vital Statistics, upon proof thereof, shall prepare a new certificate of birth in the new name of the legitimated child. The evidence upon which the new cE:rtificate is made and the. original certificate shall be sealed and filed and may be opened only upon order of court.''
Enclosed is a blank affidavit which, when properly filled out, complied with, mailed to the Bureau of Vital Statistics along with accompanying necessary information therein referred to, will be all that is necessary for the change of name to which you refer.
PUBLIC HEALTH-Vital Statistics 1. No person other than the attending physician or the coroner may sign mE:dical certification as to death. 2. No person not specifically designated in Sec. 88-1117 or Sec. 88-1115 may sign a certificate for a still-born infant.
September 1, 1948 Honorable T. F. Sellers, Director State Department of Public Health
This is to acknowledge your letter of August 26, wherein you request my opinion upon the following two questions:
1. May persons other than the attending physician or coronor sign a death certificate on that portion of the cE:rtificate pertaining to the medical certifica-
tion? ... 2. May anyone not specifically designated in Code Section 88-1117 sign a certificate for a stillborn infant?
I find that the Code Sections dealing with thesE: two questions are plain and unequivocal, and that both of your questions must be answered in the negative.
Code Section 88-1116, Georgia Code Annotated, states in part that:
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"In preparing a certificate of death, the person in charge of interment shall obtain and enter on the certificate the personal data required by the Board from the persons best qualified to supply them. He shall present the certificate of death to the physician last in attendance upon the deceased or to the coroner having jurisdiction who shall thereupon certify the cause of death according to 'his best knowledge and belief."
As is readily to be seen from the above quoted portion of the Code Section, the law requires the physician last in attendance or the coroner having juris.diction to certify the cause of death. There is no provision in the law for this important function to be performed by any other person.
Code Section 88-1117, Georgia Code Annotated, provides in part that: "Stillbirths without medical attendance shall be referred to the county or city health officer or, if there is no health officer, to the coroner, who shall .execute the stillbirth certificate." By reference, another portion of Code Section 88-1117 requires that medi.cally attended stillbirths be reported by certificates in accordance with the requirements of Code Section 88-1115. The latter is equivalent to the granting of authority to physicians last in attendance or to the coroner having jurisdiction to execute th stillbirth certificate. The portion quoted of Section 88-1117 grants authority for the execution of the stillbirth certificate to the county or c:ty health officer in addition to the attending physician or coroner. Here again there is no provision for any other person to execute the required .certificate .
PUBLIC OFFICERS-Quailifications (Unofficial) The age requirement for holding public office is 21 years.
December 14, 1948 Mr. Hallie E. Fuller
This will acknowledge receipt of your letter of De"cembcr 9, 1948, in which you seek information concerning the age qualification for public officials.
I am prohibited by law from giving opinions to anyone except the Gov.ernor and the heads of the various Departm,ents of the State Governm.ent. Notwithstanding thesE: limitations, however, I am always pleased to be of such assistance as I can in supplying information which may be of help. Anything I may say in reply to your letter is to be considered purely as information and not binding upon anyone in any manner whatsoever.
Section 89-101 of the 1933 Annotated Code provides, in part: "The following persons are held and deemed ineligible to hold any civil office, and the existence of any of the following state of facts shall be sufficient reason for vacating any office held by such person, ..... "1. Persons who are not citizens of this state, and persons under the age .of 21 years."
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PUBLIC OFFICERS-Quo Warranto The method of testing thl': right of a person claiming an office is by quo warranto.
March 23, 1948 Dr. M. D. Collins, State Superintendent of Schools
This will acknowledge receipt of your letter of March 13th enclosing a letter from Mrs. C. A. Hudson, of Raleigh, Georgia, to Honorable J. L. Yaden, dated March 9th.
I am prohibited by law from giving an opinion to anyone except the Governor and the heads of the various Departments of the State Government, and then only upon matters in which the State is involved.
Mrs. Hudson seeks information concerning the eligibility of a candidate for public office which does not fall within the jurisdiction of the Attorney General. The writ of quo warranto is the remedy for a person who has a right to obtain the same to tl':st the right of a person to hold a particular office.
PUBLIC OFFICERS-Tax Assessors (Unofficial) A member of the County Board of Tax Assessors is not eligible to hold the office of Ex-Officio Justice of the Peace.
August 13, 1948 Honorable Mel Price Judge of Superior Courts Atlantic Circuit
I have your letter of August 5, in which you rl':quest my unofficial opinion upon the following question:
Is a member of a County Board of Tax Assessors eligible to hold the office of Notary Public and Ex-Officio Justice of the Peace?
As you have pointed out, Georgia Code S6ction 92-6907 provides that members of such a Board during the time they hold their offices and for one year thereafter shall be ineligible to hold any State, County, or Municipal office.
Both I and my predecessors in office have several times ruled that Justices of the Pl':ace are State officers, and it is my unofficial opinion that Ex-Officio Justices of the Peace are also State officers.
Therefore, it is my opinion that a member of a Board of County Tax Assessors is not eligible to become an Ex-Officio Justice of the Peace.
PUBLIC PROPERTY-Asseuments Whether the State may be sued by a municipality on its liability, fixed by the legislature, for paving assessments on abutting property owned by it turns upon whether the State has waived its immunity.
January 21, 1948 Hon. M. E. Thompson Governor State of Georgia
I have your letter of January 19th, in which you request my opinion on the following question:
"Is the State required to pay the municipality of Kingston under paving
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assessments issued for paving done abutting the Western and Atlantic Railroad?"
I am informed that the paving was done as a result of a petition to the municipality by owners of land abutting the property paved.
tSee Ga. Code, Annotated, Section 92-4202: "Public property abutting on street; who may sign petitions for improvements.-WhenevE:r the owners of land abutting on any street or sidewalk petition to have the same improved, and where the State or any of its political subdivisions is the owner of property on said street, the frontager so owned shall be counted as if owned by an individual, and shall be likewise treated for the purposes of assessment, and where the State is the owner of the property the Governor may sign the application for and in behalf of the State; and where the county is the owner, the ordinary or the chairman of the board of county commissioners, as the case may be, may sign in behalf. of the county; and where a municipality is the owner of the property, the mayor of the city where said property is situated may sign in behalf of the city." The Supreme Court of Georgia in City of LaGrange v. TrouP\ County, 132 Ga. 384 ruled that the above section is applicable only when adjoining land owners petition the Municipality requesting the paving. This was done in the instant case. The Court did not otherwise construe the Section, nor has it since been construed with reference to the State's liability. Some light is thrown on the intent of the Legislature in enacting this Section by consideration of the rubric of the Act from which the Section was codified, Ga. Laws 1906, page 119: "An Act providing for the improvement of the streets and sidewalks abutting the public property of this State, or any of its political subdivisions, conferring the right upon the State, county and municipality to join in the application, fixing their liability to assessment therefor, and for other purposes.'' (Emphasis supplied). In my opinion the rubric, and these words in the body of the Section, "The State . . . shall bE> likewise treated (as an individual) for the purposes of assessment . . . ," indicate that the Legislature intended and did in fact "fix the State's liability" for paving assessments when the paving is done as a result of petition. The liability is fixed at the same rate as that of individuals.
A further question to be decided, however, is whether the Act fixing the 5tate's liability makes the State subject to suit for the collection of such assessments. It is possible that the Act may have- fixed the State's liabllity as to amount without having made such amount collectible from the State by suit.
It is well settled that the State cannot be subjected to suit without its consent, even when the suit is instigated for the purpose of collecting obligations which the State justly owes. See Florida State Bo,spital for ate Insane et. al. v. Durham Iron Company, 194 Ga. 353, and Roberts, commissioner, et. al v. Barwick et. ail. etc., 187 Ga. 691 at 694,
This immunity from suit may be removed by Act of the Legislature. Roberts, commissioner, et. al. v. Barwick et. al. etc., supra.
Such a relinquishment of the State's immunity from suit has been accomplished in some cases.
To determine whether the Act in question relinquishes the State's immunity,
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it is nec(:ssary to ascertain the exact legal meaning and import of the words "fixing liability''.
Courts of other States have on numerous occasions accepted the definition of the word "liability" presented by legal lexicographers. For example in Benge's Adm'r. v. Bowling, 51 S. W. 151, 106 Ky. 575, V:ol. 25 W'ords and Phrases, page 56 it is stated:
" 'Liability' is defined by Black's Law Dictionary to be 'the state of being bound or obliged in law or justice to do, pay, or make good something; legal responsibility'. Webster defines it to be 'the state of being bound or obliged in law or justice; responsibility'. Bouvier defines it to be 'responsibility; the state of one who is bound in law and justic(: to do something which may be enforced by action'."
It will be seen from the above quotation that there is some difference of opinion among lexicographers, as to whether or not the word ''liability'' impliedly expreSS(:S a right to enforcement by legal action in the courts. If such a right is within the import of the word, the Act in question may well be construed to have relinquished the State's immunity from suits. If judicial enforcement is not implied by the word, the Act has accomplished no such relinquishment. This is the heart of the question, for if there has been no relinquishment of immunity, no paving assessment may be collected from the State by suit without the State's consent.
So important a sovereign right as the State's immunity from suit should not and could not be relinquished wi':hout a clear, unambiguous and unequivocal Act of the Legislature. After due reflection, I am of the opinion that the Act is, at the very least, ambiguous, and that it does not accomplish the State's immunity from suits sufficiently expressed and specific to permit me to rule that the State's immunity has been removed.
I do not contend that such an interpretation of the Act may not well be made, indeed I freely admit the possibility of such a construction should the Act be presented to the Court. I contend merely that the terms of the Act in question are not sufficiently clear as to permit me to say that such an important right has been relinquished and foregone by the Legislature.
It may be argued that if there has been no such relinquishment, the Act in question is a nullity, since it would add no power not already present in the municipality. However, th10 Act does accomplish other purposes, even if it be found that it has not relinquished the State's immunity. The Act provides various public officers with the power to join in petitions urging that paving be done. This in itself is certainly sufficient subject matter for the enactment of a law.
:The possibility has been suggested that paving assessments may be collected by sale of the State's property abutting the property paved, under the theory that a sale under assessment is not a suit against the State and, therefore, is not one which requires the State's consent.
This contention, in my opinion, is without merit under the ruling of our SuprEme Court in the case of Florida State Ho,spital, et al. vs. Durham !ron Co,mpany, sup,ra, in which the Court said:
"The rule (requiring State's consent to suit against it) not only relates to actions in personam but extends to actions in rem against money or property of the State, where the judgment will affect thE State's control over or diminish its property or assets by enforcing a liability against the same."
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Although sale under a paving assessment does not necessarily havE: the dignity of a suit against the State, such a sale certainly has the forbidden effect of reducing the State's control over its property.
A further bar to sale by a municipality of the State's property under a fi.fa. based on a paving assessmE:nt is the Supreme Court's decision in City of LaGrange vs. Troup, supra. wherein the court held that a municipality could not sell public property to collect an assessment, unless such municipality had been specifically granted such authority by its city charter. An examination of the charter of the City of Kingston reveals no such grant of authority.
It is therefore my conclusion that the State is not liable for paving assessments issuE:d against the State to collect a prorata share of the expense of paving done on propery abutting the right-of-way of the Western and Atlantic Railroad. However, I would like to call your attention to the words of our Supreme Court in the case of Roberts, commissioner, et. al. v. Ba,rwi1ck, et. al., etc., 187 Ga. 691, wherein the court quoted with approval the following statement:
".... whoevtr contracts with the State trusts to the good faith of the State, unless the State sees fit to disrobe itself of its sovereignty".
Inasmuch as the Legislature has given the Governor the authority to join in a petition requesting a municipality to pave property adjoining the State property, and since public policy certainly demands the same mE:asure of good faith from a sovereign State as from an individual, I am clearly of the opinion that in those cases where the best interest of thE: State indicates the advisability of petitioning a municipality to pave property, you are authorized and empowered to join in such petition; after you have done so, there is no quE:stion but that public policy demands that you uphold the good faith of the State by authorizing and directing that the State government pay its proportionate share of the costs of the paving.
Such action on your part is E:ntirely within your discretion, and I would not presume to advise you on how to exercise it.
However, I do wish to point out for your consideration the fact that the Western and Atlantic Railroad is a valuable asset of the State, and that its upkeep is necessary to preserve it as a commercial prop,erty. Therefore, it certainly seems advisable for the State to authorize and pay for paving adjoining the Railroad wherever needed.
PUBLIC PROPERTY-Assessments 1. The State may not, without legislative authority, pay a municipality for the cost of paving property abutting that of the State. 2. The State Highway Department may not reimburse a municipality for paving already done on property abutting that of the State.
April 13, 1948
Honorable M. E. Thompson Governor of Georgia
This will acknowledge rectipt of your recent letter, in which you ask the following additional questions concerning my opinion to you on January 21, 1948, dealing with the question of paving assessments against the State by the municipality of Kingston, Georgia:
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"(1) Can the State of Georgia legally pay for the cost of the improvement of this property?
"(2) Can the State Highway Departm~nt reimburse the City of Kingston for paving already done by the City of Kingston on State property?
"(3) If the above item can be paid, from what funds should it be paid?" In reply to the first question, it is my opinion that it will require an Act of the General Assembly authorizing the payment and making an appropriation therefor. In answer to question two, it is my opinion that the State Highway Department does not have the authority to reimburse the City of Kingston for paving already done by the City of Kingston on property abutting the property of the State. Since the answers to the first two questions are in the negative, it is unnecessary to pass upon the third question. In view of the foregoing facts and conclusions of law, it is my recommendation that you request the next General Assembly to give consideration to a resolution appropriating a sufficient sum to reimburse Kingston for the cost of the assessment against the State, since you were not a party to the petition for the paving of the property involved.
PUBLIC P:ROPERTY-Condemna.tion-Attorneys Fees Attorneys fees for property authorized work on behalf of the State in connection with condemnation of land for use of State Prisons are properly payable by the Department of Corrections.
August 19, 1948 Hon. C. A. Williams Director of Corrections
I am in receipt of your letter of August 18th enclosing copy o~ an Executive Order dated July 7, 1948 making provision for the payment by the Department of Corrections of a $200.00 fee to Mr. R. N. Odum i~ a CO'Ildemnation proceeding to acquire title to certain land owned by Josh Bell, et al., to be used by the State Prison.
You ask whether there has been any change in procedure during the past year that would authorize you to make payment of this fee.
Under date of November 26, 1947, No. 71, I had occasion to render an official opinion on this subject. The opinion reads in part as follows:
"I am of the opinion that when attorney's fees have been incurred by virtue of the employment of an attorney properly appointed by the Governor and concurred in by the Attorney General, the Governor is authorized, should he see fit to do so, to direct that such attorneys' fees be paid from funds made available to the department for which such legal services were rendered."
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PUBLIC PROPERTY-Easem*nts The Governor may grant an easem*nt to a power company for the purpose of erecting poles for transmitting electric current to the State Prison.
December 16, 1948 Hon. C. A. Williams, Director State Board of Corrections
I am pleased to acknowledge your letter of Decemlber lOth, in which you state that the Board of Corrections is desirous of obtaining electrical service at the State Prison from the Georgia Power Company, but in order to do this it is necessary for the Power Company to have an easem*nt over State property for the purpose of permitting the construction of a power line to be used in transmitting electric current. Your question is whether or not the Governor is authorized to execute such an easem*nt in behalf of the State.
Under Section 91-402 of the Code of Georgia, the Governor is given general supervision over all property of the State. It is my opinion that the Governor is empowered to grant an easem*nt to the Georgia Power Company for the purpose of erecting poles to be used in transmitting electric current to the State Prison, if he so desires.
PUBLIC PROPERTY-Unserviceable (Unofficial) State-owned property, when unserviceable, may be disposed of by order of the Governor; when serviceable, or any question exists as to serviceability, the sale should be approved by the General Assembly.
October 27, 1948 Honorable Claude M. Hicks Attorney at Law
Your letter of October 14, 1948, addressed to Mr. Allen Chappell of the Georgia Public Service Commission, has been referred to me for reply.
You request information as to the possibility of purchasing certain stateowned property described in your letter.
Under the Constitution and laws of this State, the Attorney General is prohibited from giving official opinions to anyone other than the Governor and heads of the various State departments upon matters pertaining to the interests of the State. However, it is a pleasure for me to refer you to the provisions of law applicable to your question as a matter of information.
After a careful study of your letter, the following is submitted for youl" information. Your attention is directed to Section 91-804 of the Code of Georgia of 1933, which is as follows:
"When any public property shall become unserviceable, it may be sold or otherwise disposed of, by order of the proper authority, and an entry of the same shall be made in said book, and the money received therefrom shall be paid into the treasury."
The proper authority referred to in the above quoted Section is the Governor for all property belonging to the State. It is my opinion that the safe and proper way to purchase property when the same has not become unserviceable within this Section (91-804), would be by an Act of the General Assembly.
It seems that even when the applicability of Section 91-804 is questionable," the proper course would still be through an Act of the General Assembly.
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PUBLIC PROPERTY-Warm Springs Memorial The Warm Springs Memorial Commission may operate concessions on the Park Site.
March 22, 1948 Mr. Lee S. Trimble, Secretary-Treasurer Franklin D. Roosevelt Warm Springs Memorial Commission
I have your letter of March 4, 1948, in which you request my opinion as to the legal aspects involved in the operation of a concession stand by the Commission at its sit<:.
The Act which created the Commission (Georgia Laws 1946, p. 31) gives the Commission the following powers, among others:
"(2) To acquire, hold and dispose of personal property for accomplishing the purposes of the Commission.
" (4) To employ special talent, do advertising, provide such recreational facilities as they may deem necessary and advisable.
"'(5) To provide for public admis.sion to such Memorial, to provide for revenue for maintenance and improvements by charging admissions or in other ways as may be desired; but all of the income to be used for the advancement of the purpose for which this Commission was created.
"(8) To make contracts and to execute all instruments necessary or convenient, including contracts for construction of such Memorial and such improvements thereto.
" (9) To construct, erect, acquire, own, repair, remodel, maintain, add to, extend, improve, equip, operate and manage self liquidating projects or concessions to be located on property owned by the Commission.
It is my opinion that the above sections grant the Commission full authority to conduct concession stands at the site, provided the profits from such stands are used for the advancement of the purpose for which the Commission was created.
It is true that our Constitution prohibits the State or its agencies frora contracting debts except for certain specified purposes (Georgia Code Annotated, Sec. 2-5601). However, this section does not and could not prohibit the incurrence of obligations on running account.
Although the Supervisor of Purchases is designated by State statute as the officer charged with the duty of purchasing supplies, etc. required by the State government, purchases of supplies for use in concession stands have not been c-Jnsidered to be within that category. However, I see no legal objection to the Commission's operating the concession stand and making its own purchases.
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PUBLIC PROPERTY-Warm Springs Memorial 1. The lending or use of the Commission's fire fighting apparatus is a matter in the discretion of the Commission. 2. No liability would be incurred arising out of such loan or use.
April 1, 1948
Honorable Lee S. Trimble Secretary-Treasurer Franklin D. Roosevelt Warm Springs Memorial Commission
By your letter of March 27, 1948, you reql!lest an Eoxpression from the Attorney General as to the general use of the fire truck and other fire fighting equipment which have recently been purchased by the Franklin D. Roosevelt Warm Springs Memorial Commission. Specifically, you have asked for expressions as to the three following points:
" (1) Should this equipment be used to fight fires not on the lands of this Gommission?
(2) Is it permissible to lend this equipment to be used by others, including the towns of Warm Springs, Manchtster, or other nearby towns?
(3) What liabilities are assumed by this Commission when this equipment is in use in fighting fires?"
At the outset, I would like to advise that the questions you have raised are for the most part matters of an administrative nature which are to be exercised exclusively by the Commission. Such comments as I may make hereinafter are made with that understanding. Also, the following views must be taken and understood to be of a general nature only as it is impossible from your broad queries to make specific statements which will be binding and authoritative as to all possible situations which might arise under them. The points as enumerated above are discussed in their numerical order.
(1) It is to be assumed, of course, that the fire fighting equipment referred to has been obtained by the Commission in the furtherance of its duties and obligations as outlined in Chapter 40-24 of the Georgia Code, Annotated. There is nothing in the Chapter referred to which has specific reference to the limitation of the use of personal or real property acquired and held by the Commission. On the contrary, there are granted broad powers regarding the acquiring, holding, and disposing of personal property and real property by the Commission. These broad powers would setm to indicate that the agency would be limited only in its discretion as to such use, acquisition, holding, and disposing of property as would conform to a reasonable and fair use of such property in the furtherance of its duties. This broad grant of authority, when coupled with the specific legislative stattment contained in the Chapter to the effect that the entire Chapter should be liberally construed, would seem to authorize the Commission to use its fire truck and fire fighting equipment anywhere it pleases provided it be deemed by that body that such use would be in the furthtrance of the purposes for which the Commission was created.
(2) The statements made in (1) above would, of course, apply as well to question number (2). In addition, however, it should be pointed out that the Constitution of the State provides in Code Section 2-5901 (a), Georgia Code, Annotated, as follows:
"The State, state institutions, any city, town, municipality or county of this State may contract for any period not excetding fifty years, with each
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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."
In Code Section 40-2401, Georgia Code, Annotated, it is stated clearly that the Franklin D. Roosevelt Warm Springs Memorial Commission is deemed to be an instrumentality of the State of Georgia.
Again by Code Section 40-2406, Georgia Code, Annotated, in sub-sections 2, 8, and 14 there is granted to the Commission ample authority' to make and to perform contractual obligations.
From the foregoing, it follows that the pom:mission may in its discretion conclude contracts with neighboring towns for the use of the fire fighting equipment if by so doing it may further the purposes for which it was created.
(3) It is settled law that sovereign governmental bodies cannot be subject to suit without their consent. This immunity from suit may be removed by the act of the legislative body. However, I find no such exemption from immunity of suit either express or implied in the statutes creating the Franklin D. Roose velt Warm Springs Memorial Commission. Accordingly, I do not believe that any liability could rest upon the shoulders of the Commission insofar as the fire fighting equipment referred to is used in connection with the Commission's official functions.
I would like to point out, however, that the immunity from suit and liability accorded to the sovereign power has been held upon numerous occasions as not applying where the sovereign or governmental agency caused damage through the use of its instrumentalities when it was acting in its proprietary capacity as distinguished from its official capacity. Hence, caution should be exercised in the use of the contractual power of the Commission so as to avoid the possibility of a proprietary liability arising. While admitting such liability is possible, I, nevertheless, consider it to be a remote likelihood.
Of course, nothing in the discussion of question number (3) is to be. understood as applying to individual employees of the Commission who, through their negligence while carrying out their official functions, may incur personal liability. Public officials and employees, even when upon official functions and duties, are held liable in law for damages arising from their personal negligence.
PUBLIC PROPERTY-Warm Springs Memorial Funds of the Warm Springs Memorial Commission are deposited in State Treasury and accounts are under control of State Auditor.
April 12, 1948
Honorable Lee S. Trimble Secretary-Treasurer Franklin D. Roosevelt Warm Springs Memorial Commission
This is to acknowledge receipt of your letter of March 31, in which you make inquiry regarding proper accounting and auditing policies concerning the Franklin D. Roosevelt Warm Springs Memorial Commission.
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Inasmuch as we have already ruled that the Commission is an instru-
mentality of the State government, it would be as in case of all other instru-
mentalities, subject to its funds being deposited in the State Treasury, the
accounts kept in accordance with the rules and regulations of the State Auditor
and audited by him in accordance with his duties under the law.
,
As to the administrative procedure raised in several of your questions, may
I suggest that you confer with the State Auditor before setting up your account-
ing system.
PUBLIC PROPERTY-Warm Springs Memorial The Warm Springs Memorial Commission may contract with a private corporation with reference to use of Commission's firefighting apparatus.
June 2, 1948 Honorable Lee S. Trimble Secretary-Treasurer Franklin D. Roosevelt Warm Spring Memorial Commission
This is to acknowledge your letter of May 21, 1948, in which you present a question in substance as follows:
"May the Franklin D. Roosevelt Warm Springs Memorial Commission contract with the Warm Springs Foundation, a private corporation, for the use by the latter of the former's fire fighting equipment?"
Code Section 40-2406, Georgia Code Annotated, provides as follows: "The Commission shall have the following powers: (2) To acquire, hold and dispose of personal property for accomplishing the purposes of the Commission. . . . . . (8) To make contracts and to execute all instruments necessary or convenient, including contracts for construction of such memorial and such improvements' thereto..... (11) The Commission is authorized to fix and revise from time to time fees, rentals and other charges for the use of the facilities and services furnished by the Commission, and to charge and collect the same and to lease and to make contracts with any person with respect to the use of any facility or part thereof.. ( 14) To do all :hings necessary or convenient to carry out the powers expressed in this Chapter." Code Section 40-2407, Georgia Code Annotated, provides specifically that the Chapter pertaining to the Franklin D. Roosevelt Warm Springs Memorial Commission shall be liberally construed in order to better effect the purposes behind the creation of the Commission. Under the authority contained in the citations above, it seems clear that the Franklin D. Roosevelt Warm Springs Memorial Commission would have the authority and power to enter into a contract with the Warm Springs Foundation, a private corporation, whereby the latter would furnish, as consideration for the use of the fire fighting equipment in question, the necessary water supply to the former. It is my opinion that such a contract would come within the contractual powers granted to the Commission by the statutes.
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PUBLIC PROPERTY-Warm Springs Memorial The Wann Springs Memorial Commission may contract with private individuals for the manufacture of photographs with provisions for exclusive use and sale.
June 21, 1948 Honorable Lee S. Trimble, Secretary-Treasurer Franklin D. Roosevelt Warm Springs Memorial Commission
I have your letter of May 24, with enclosures, in which you request my advice on the legal aspects <>f a proposed contract to be made between the Commission and a photographic corporation for the purpose of the manufacture of photographs of the interior of the Little White House at Warm Springs, for sale as souvenirs.
To answer your questions specifically: It will be possible to prepare a contract providing a sliding scale price based on the number of photographs purchased; It will be possible to secure the exclusive sale rights of the photographs to the Commission; It will be possible to prohibit the photographer from selling the photographs, negatives, etc., to any other person or corporation; Provision may be made for the can.:ellation of the contract for violation of such conditions as you may see fit to impose. You ask my opinion as to advisability of copyrighting the photographs. If you foresee possible piracy of the photographs by others, it would seem advisable to obtain copyright. The services of the Law Department are of course available to you for the actual drafting of this contract at such time as you have full infonnation and are ready to proceed.
PUBLIC PROPERTY-Warm Springs Me,morial Manufacture of souvenirs by handicapped persons for sale at Memorial may be handled by non-profit corporation.
August 5, 1948 Honorable Lee S. Trimble Secretary-Treasurer Franklin D. Roosevelt Warm Springs Memorial Commission
I have your letter of August 2 in which you request my suggestions as to the best method for creating a sponsoring agency to handle the manufacture of souvenirs by handicapped persons for sale at the Souvenir Shop at the Little White House.
You state this. this would be a non-profit venture, but at the same time should be a self-liquidating venture.
It is my suggestion that the sponsoring agency be established as a nonprofit corporation under the provisions of Georgia Code Annotated Section 22-1881, and Section 22-413. Such a non-profit corporation could receive donations, buy and sell property, and otherwise operate as a legal entity. Sue~ a corporation could bear any name not already in use, and should you wish to USE' the name "Guild" as we have previously diHcussed, it would be quite proper.
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I shall be most pleased to cooperate with you in setting up such a corporation if it is to be under th6 sponsorship of your Commission. On the other hand, you may wish to engage the services of a local Attorney, and I am sure such services will be forthcoming gratuitously by a member of the Bar in the locality in which the venture is to be established.
Your letter has been ref6rred to me for answer in the absence of the Attorney General.
PUBLIC PROPERTY-Warm Springs Me.moria1l Warm Springs Memorial Commission may not grant easem*nts over State land to a power company.
December 20, 1948 Hon. Lee S. Trimble, Secretary-Treasurer Franklin D. Roos6velt Warm Springs Memorial Commission
I am pleased to acknowledge your letter of December 17th, in which you state that a public utility desires to erect electric light poles and wires over certain property belonging to the State of Georgia. In your letter you state the following:
"Electric light poles and wires are objectionable, of course, but we can hardly refuse to cooperat6 so that those building homes Just beyond this strip may have light and power service."
Under the powers of the Commission as set forth in Section 40-2406, we do not find the authority to grant easem*nts over the property held by the Commission.
If, in the opinion of the Commission it is desirable to grant such an easem*nt, then it will be nec6ssary to have the approval of the Governor. Under Section 91-402 of the Code, the Governor is given general supervision over all property of the State.
PUBLIC REVENUE-Ad Valorem Tax (Unofficial) Real property sold for taxes may be redeem6d within 12 months and thereafter until right to redeem is foreclosed by notice.
March 1, 1948 Mrs. Lizzie William Taylor
I beg to acknowledge receipt of your letter of F6bruary 24, 1948, in which you request information as to the time limit to redeem property in Georgia under the tax law.
Replying thereto I beg to advise that the Attorney General of Georgia is not authorized under the law to give official opinions or information upon any question except when directed by the Governor or the heads of the several State Departm6nts. Therefore, the information given herein, you will understand, is strictly personal and unofficial.
Section 92-8301 of the Annotated Code of Georgia of 1933 reads as follows: "Whenever any real property shall be sold under or in obedience to any execution issued for the collection of State, county, city, municipal or school taxes, or special assessments, the defendant in fi. fa., or any person having any
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right, title or inttrest in or lien upon said property, may redeem said property from said sale at any time within 12 months from the date of said sale, and at any time thereafter until the right to redeem shall be foreclosed by the giving of the notice provided for in section 92-8306, by the payment of the redemption price, or amount rtquired for redemption, as fixed and provided in section 92-8313."
I wish to state that there are several Sections of this Code in which it is stated fully the method of procedure, etc. in redeeming property sold under
taxation. You will find this law in Sections 92-8303, 92-8306, 92-8307, 92-8308,
92-8309, 92-8310, 92-8311, 92-8312, 92-8313 and 92-8314 of the Annotated Code of 1933.
PUBLIC REVENUE-Ad Valorem Tax (Unofficial) A lienholder, by paying the proportionate part of the taxes assessed against the property of the taxpayer which the value of the proptrty subject to his lien bears to all of the property in the assessment, may release the property subject to his lien from the lien for taxes.
June 14, 1948 Honorable L. E. Sweat Tax Collector, Pierce County
This will acknowledge receipt of your letter of June 11, 1948 with reference to the proportionate payment of taxes by lien holders and the release from tax lien pursuant to payment.
It is my understanding that sometime ago a letter went out to the Tax Collectors of the State from the State Revenue Department under the signature of Mr. J. E. Hyman, who was at that time an attorney for the State Revenue Department, holding, in tffect, that the creditor seeking to get a release of the property upon which it held a lien would have to pay the tax on the personal property of the taxpayer before a release would be given, where tht taxpayer owned no other real estate. A petition for declaratory judgment was brought in Bacon Superior Court by the Ftderal Land Bank against B. H. Aldridge as Tax Collector of Bacon County, and Glenn S. Phillips as State Revenue Commissioner, for a construction of the law relating to the proportionate payment of taxes by lien holders. The case was carried to the Supreme Court for a final decision of the questions involved. The court held in substanct that the lien holder had a legal right to pay the tax on its security and have it released from the execution without also paying the tax on the personal property. This case, being a very recent one, is not yet reported in the Georgia Reports, but can be found in the Southeastern Reporter Advance Sheet of April 8, 1948, page 578. (46 S. E. 2d 8, pages 545-632).
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PUBLIC REVENUE-Ad Valorem Tas-Welfare Benefits The limitation on taxation for welfare benefits was repealed by the 1946 Act.
August 13, 1948 Honorable W. E. Ireland, Director State Department of Public Welfare
I have your letter of August 12 in which you request my opinion on the following question:
Is there any statutory or other limit on the rate of taxation which a county may levy for the purpose of providing revenue for welfare benefits?
In 1938 the General Assembly amended Georgia Code Section 92-3701 which sets out the purposes for which counties are authorized to levy taxes, by adding to that Section a provision permitting the levying of county taxes to provide for welfare benefits (Ga. Laws Extra Sess. 1937-1938, p. 292). This Section limited the rate of such taxation as follows:
"Provided that the taxes authorized hereby shall not exceed three (3) mills in any one year."
This grant of authority to the counties to tax for .the purpose of raising revenue for welfare benefits was made a part of the 1945 Constitution (Article 7, Section 2, Paragraph 1); (Ga. Gode Ann. Sec. 2-5501, Par. 7). However, the three mill limitation on the rate of tax was omitted from the Constitution. The only limitation on the tax provided by the Constitution is as follows:
"No indebtedness against the State shall ever be created for the purpose herein stated, in excess of the taxes lawfully levied each fiscal year under Acts of the GenEoral Assembly authorized hereunder for such purposes."
In 1946 the General Assembly repealed Section 92-3701 in its entirety and substituted in lieu thereof a new Section also denominated as Section 92-3701. The new Section insofar as it relates to county taxation for welfare purposes, is substantially the same as the provision containEod in the 1945 Constitution, and the new Code Section does not provide any limitation upon the rate of taxation for welfare purposes other than that stated in the Constitution as quoted above.
Thus the three mill limitation on the rate of taxation was omitted from the Constitution and specifically repealed by the Act of 1946.
It is therefore my opinion that there is no limitation on the rate of taxation which a county may levy for welfare purposes in force at this time.
PUBLIC REVENUE-Ad Valorem Tax (Unofficial) Without prejudice as to actions for other years, the dismissal of pending proceedings against non-rEosident insurance companies for ad valorem taxes on real estate mortgage notes is authorized upon payment by them of stipulated amount on expenses of proceedings.
October 21, 1948 Hon. W. S. Northcutt County Attorney Fulton County Courthouse
In Re: Proposition of life insurance companies to reimburse Fulton County expense in pending litigation to extent of $100,000.
I am pleased to acknowledge your letter of October 16th in reference to
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the above stated matter, in which you recoml)lend that several pending .cases ~gainst insurance companies relative to 1931.-37 ad valorem taxes on mortgage notes secured by real estate located in Fulton County, be dismissed upon the payment by said defendants in the sum of $100,000.00. In your letter you specifically state the following:
"I concur in the recommendations contained in the inclosed letter to you by members of Fulton County Board of Tax Assessors.
"The cases in question are all pending cases whereby the County Tax Assessors were enjoined from making assessments of credits secured by real estate and owned by non-resident mortgage companies for the years 1931 to 1937 inclusive.
"In order to consummate the settlement and secure reimbursem*nt of this part of the county's expense it is necessary that the appeals by the Revenue Commissioner pending in Fulton Superior Court against the same companies on the same credits for 1938 and subsequent years be dismissed by the Attorney General.
"The following decisions have held in effect that the rule of the Northwestern Mutual Decision will not be extended beyond the identical facts of that case:
"National Mortgage Corp. vs. Suttles, 194 Ga. 76'8, opinion on rehearing 770.
"Davis vs. Metropolitan Life Ins. Co., 196 Ga. 304, opinion 316. "Davis vs. Penn Mutual Life Ins. Co., 201 Ga. 831, opinion 830. "It is my belief as an attorney that attorneys representing the insurance companies should be permitted to take orders as suggested in the letter of the tax assessors, that the appeals by the Revenue Commissioner now pending may not be successfully maintained, and that Fulton County should be permitted in this way to recoup a part of its large expense in this extended litigation." I also note the recommendation referred to in your letter given by the members of the Fulton County Board of Tax Assessors, which likewise recommends that this particular litigation with the life insurance companies be settled according to the tenor of your letter. I would also like to call to your attention the matter of court costs involved in this litigation. Since the county receives the greater portion of the proposed settlement figure, it seems that these costs should either be borne by the county or the insurance companies, rather than by the State. Neither of the recommendations submitted to me refer to this matter. I will be glad to abide by your recommendation and that of the Fulton County Board of Tax Assessors to the effect that this litigation be dismissed when the following provisions have been complied with: (a) The taxing of court costs. (Not against State) (b) The dismissal to show that these proceedings are in nowise to affect any future litigation which may be engaged in upon similar questions for taxable years other than those referred to in the suits to be dismissed. After these exceptions have been fully complied with, you are authorized to use this letter for your authority in dismissing the cases covered by the recommendation proposed to me in your letter of October 16, 1948.
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PUBLIC REVENUE-Ad Valorem Tax-Soldiers and Saillors Relief Act The purchase of a car license in Georgia, indicating choice of a domicile, makes a serviceman station in Georgia subject to personal property tax.
November 26, 1948 Honorable Charles D. Redwine Commissioner of Revenue
I am pleased to acknowledge your letter of November 22, 1948 in which you requested me to render an official opinion relative to whether automobiles owned and operated by Army personnel stationed at Fort Benning, Georgia are subject to personal property ad valorem taxes.
The pertinent statute involved in Section 514, as amended, of the Soldiers' and Sailors' relief act, found in Title 50 of the United States Code Annotated. Paragraph 1 of Section 574 provides that members of the military service shall not have been deemed to have lost a residence or domicile solely by being absent in. compliance with military or naval service. It further states that if members of the service are stationed in another State away from his domicile that his personal property is not deemed to have a taxable situs in that State in which he is living pursuant to military orders.
If the statute had stopped at this point, then it would be self-evident that Georgia could not tax personal property of military personnel residing here. However, Paragraph 2 states:
"When used in this section, (a) the term 'personal property' shall include tangible and intangible property (including motor vehicles), and (b) the term 'taxation' shall include but not be limited to licenses, fees, or excises imposed in respect to motor vehicles or the use thereof: Provided, That the license fee, or excise required by the State, Territory, possession, o,r District of Columbia o,f which the p,e,rson is a re,sidtent or in which he is domi:ciled has been paid."
In view of the above, the question narrows to what jurisdiction a man in service chooses to be his domicile. If he chooses to buy an automobile tag and pay the personal property tax in the State of his original domicile, the Soldiers' and Sailors' Relief Act protects him from another State in which he is residing pursuant to military orders imposing an additional personal property tax upon him.
On the other hand, if a member of the Armed Forces purchases a Georgia automobile tag and has not purchased a tag in the State of his residence, then the Soldiers' and Sailors' Relief Act does not protect him and he becomes liable for the Georgia personal property tax. By buying a Georgia tag, he has chosen Georgia for his taxable situs and his domicile.
It is clear that the Congressional intent of this enactment was not to exempt service men from the payment of personal property tax but to protect them from being taxed by m:ore than one State.
860
PUBLIC REVENUE-Ad Valorem Tax An automobile purchased by the Federal Government for disabled v&terans is exempt from tax only so long as the identical automobile is retained.
November 26, 1948
Honorable W. Harvey Atkinson, Director Property & License Tax Unit
I am pleased to acknowledge your letter of November 23, 1948 in which you requ&sted that I render an official opinion relative to the liability of veterans, who have been furnished automobiles by the Federal Government, for personal property tax on said cars.
Paragraph 252, Title 38 of the United States Code Annotated provides for the following:
"Automobiles for certain disabled veterans.
There is appropriated $30,000,000 to &nable the Administrator of Veterans' Affairs to provide an automobile or other conveyance, at a cost per vehicle or conveyance of not to exceed $1,600, including equipment with such special attachments and devices as the administrator may deem necessary, for each veteran of World War II who is entitl&d to compensation for the loss, or loss of use, of one or both legs at or above the ankle under the laws administered by the Veterans' Administration: Provided, That no part of the money appropriated by this section shall be used for the repair, maintenance, or replacement of any such automobile or other conveyance and no veteran shall be given an automobile or other conveyance under the provisions of this section until it is established to the satisfaction of the Administrator that such veteran will be able to operate such automobile or other conveyance in a manner consistent with his own safety and the safety of others and will be licensed to operate such automobile or other conveyance by the State of his residence or other proper licensing authority: Provided further, That under such regulations as the Administrator may prescribe the furnishing of such automobile or other conveyance shall be accomplished by the Administrator paying the total purchase price to the seller from whom the veteran is purchasing under sales agreement between the seller and his Veteran." Aug. 8, 1946, c. 870, Title I, Par. 101, 60 Stat. 915.
You will note that Congress in the above statute provided that the Veterans' Administration will buy the car and give it directly to the amputee. The car, therefore, is similar to giving these men a $1,600 gratuity in slight repayment for the loss of their limbs while giving patriotic service to their country. In studying this problem, I have carefully reviewed the legislation since World War I, in which the Federal Government has given veterans certain benefits, such as pensions, bonus compensation, mustering out pay, terminal leave pay, cash bonds for unused leave, allowances under Public Law 16 for disabled veterans, automobiles given to veterans, etc.
In each one of these cases, such allowance has been exempt from Federal taxation as long as it remains in the form that it was given. In other words, for example let us say that a veteran drew $1,000 terminal leave pay; this $1,000 is not taxable by the Federal Government. However, suppose he makes a down payment on a house with this sum, then the money loses identity and the veteran loses the Federal tax immunity.
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In view of the above, it is my opm1on that Congress intended veterans' bE:nefits to be tax exempt as long as they remain in their original form; thus, in the instant case, it appears reasonable to me that his car would be exempt from personal property tax as long as it was the original car given to him by the Federal Government. On the other hand, when such automobile is sold or traded for a new car, then the new car would be taxable.
PUBLIC REVENUE-Ad Valorem Tax Livestock which grazes in two or more counties is taxable in the county where the plantation is located.
December 20, 1948 Honorable W. Harvey Atkinson, Director Property and License Tax Unit
I am pleased to acknowledge your letter of December 8, 1948, in which you requested an opinion relative to which county a mali must pay personal property tax when his farm is in two counties and the stock grazes in both countiE:s.
In the case of Coun.ty of Walton et. al. vs. County of Morgan, 120 Ga. 549, the court in the discussion of the problem stated the following:
"By such general law, it might declare that all stock and property on farms may be taxed where the plantation is situated."
The Supreme Court in the case of High Shoals Manufacturing Compan,. va. Pen.ick stated:
"There might exist a situation where the personality is located in the county of the ownE:r's residence, yet is employed as an accessory to a business or manufacturing enterprise, located on a single tract of land which lay in two or more counties. The General Assembly in its wisdom applied the unit rule of taxation to this condition of affairs, and provided that the land and all personal property accessorial to the businE:ss or manufacturing enterprise should be taxable in the county where the main buildings of the business or manufacturing enterprise was conducted."
In view of the above, it is my opinion that the Supreme Court is saying that when a man has a plantation or farm in which the real property runs in two or more counties, the personal property in this situation is taxable by the county in which the taxpayer maintains his home. If the taxpayer does not live in any of the counties in which his farm runs, then the personal property would be taxable in the county in which the majority of buildings are located.
PUBLIC REVENUE-Ad valorem tax A resident of another State, stationed in an army camp in Georgia, by buying a Georgia automobile license chooses Georgia as his domicile and is subjE:ct to personal property taxes.
December 27, 1948 Honorable W. Harvey Atkinson, Director Property and License Tax Unit
I am pleased to acknowledge your letter of December 8, 1948, in which you requested an official opinion from me relative to the liability of military personnel stationE:d at Turner Field, Albany, Georgia, for personal property taxes.
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I have carefully studied the letter attached to your request from the Judge Advocate General of Turner Field.
I believe that my opinion dated November 26, 1948, to the Honorable Charles D. Redwine relative to military personnel stationed at Fort Benning answers all of the contentions set forth by the Judge Advocate.
On the other hand, for further clarification of the matter, it is noted that the Judge Advocate takes the position that the purchasing of Georgia tags cannot be considered in itself as a basis of establishing domicile of said purchaser.
It is my opinion that Section 574 of the Soldiers and Sailors Act was passed to prevent multiple personal property taxation by various states to which a man in the armed forces m!lly be ordered. In other words, if a soldier whose domicile is in Michigan is stationed in Georgia and he buys a Michigan tag, the Act prevents Georgia from requiring him to buy a Georgia tag.
If we construed the Jaw as the Judge Advocate has done, it would result in the soldiers not paying personal property tax in his original home residence or in the state in which he is stationed. It is clear to me that the Act did not intend such a result and was m,erely passed to prevent double taxation.
It is noted that the Judge Advocate General concedes the following: "1. A bona fide resident of Georgia on duty at Turner Air Fovce Base.
2. Personal property of non-resident military personnel who are using the property for trade or business purposes.
3. Real property purchased by military personnel assigned to duty at Turner Air Force Base."
I am'still of the opinion that if a soldier is stationed in Georgia and buys a Georgia automobile tag, he is choosing Georgia as his domicile for personal property taxes.
PUBLIC REVENUE-Homestead Exemption (Unofficial) Taxes levied for schools of county (including municipality) by county fiscal authorities on property outside municipality are not levied by municipality so as to be without the Homestead Exemption.
January 9, 1948 Honorable John J. Bouhan Bouhan, Lawrence & Williams Attorneys and Counselors at Law
Some weeks ago the Attorney General turned over to me a letter from you with reference to homestead exemptions under the tax levy for the public schools operated by the Board of Public Education for the City of Savannah and the County of Chatham, with instructions that a thorough study be made of the brief and laws enclosed, as requested by you.
After satisfying my own mind that the homestead exemption extends to the people owning homes in Chatham County where the tax is levied by the county authorities, I turned the file over to Judge McGraw, inasmuch as he had occasion previously to study this same question. \ I am in receipt of a memorandum from Judge McGraw, a copy of which I am herewith enclosing to you for your own personal information. As you will see, the memorandum is wholly in agreement with your interpretation of the law.
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The file, together with the memorandum to me,. is being filed in the Attorney General's office for further reference when and if the Tax Receiver should ask the further advices of the Attorney General.
(Copy)
January 6, 1948
MEMORANDUM TO: RUBYE JACKSON
Some few days ago you sent me letter from John Bouhan, together with a brief filed relating to the question of whether or not home exemptions applied in the County of Chatham against the levy of school tax. You requested that I review the brief and give you the benefit of my opinion on the question.
I have reviewed the brief, together with the provisions of the local acts creating the corporation or independent school system composed of the City of Savannah and the County of Chatham and see no reason why I should change my opinion from that expressed in a letter prepared for Mr. Cook on November 3, 1947, addressed to Mr. Strong, Superintendent of the Schools at Savannah, Georgia. The Constitution of 1945, as I construe it, provides that the system of schools in Chatham County shall be entitled to levy the same tax which counties are permitted to levy for school purposes. The Constitution of 1945 provides that the homestead shall be exempt from taxation for State, county and school purposes, except taxes levied by municipalities for school purposes. I do not understand that the City of Savannah would have authority to levy tax in that part of Chatham County which lies outside of the corporate limits of the City of Savannah. It is my information that tax, though used by the corporation or board of education of the Chatham County system, is levied by the fiscal authorities of the County of Chatham on properties lying outside of the city. You will note that the exception to the exemption of homestead is for taxes levie,d by municipalities. I do not think that the party who prepared the brief for the school authorities took this feature of the Constitution into consideration.
I am, therefore, of the opinion that the people owning homes in Chatham County, where the tax is levied by the county authorities, are entitled to have home exemption.
PUBLIC REVENUE-Homestead Exemption (Unofficial) The resident owner of an entire duplex and all land on which it is situated is entitled to homestead exemption.
January 26, 1948 Honorable A. Edward Smith Assistant County Attorney Muscogee County
Reference is made to your recent letter in which you ask for my unofficial opinion as to whether or not a duplex apartment house owner would be eligible to receive the allowable homestead exemption.
As you know, and as indicated in your letter, I am unable to render you an official opinion upon the matter and, accordingly, any belief I may havo
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upon the question you ask is entirely unofficial and, of course, not binding upon anyone. I will appreciate your treating my opinion in a confidential and unofficial manner.
It is my belief that the duplex dwelling would come under Code Section 92-233 (2) of the Georgia Code of 1933, Annotated. Therefore, I believe the exemption would be allowable to the owner of such a duplex dwelling. While it does appear at first glance that Sub-section 6 of the above cited Code section does somewhat conflict, nevertheless, I do think the two sections are distinguishable in that the land upon which a duplex dwelling would be built would be owned by the dwelling owner and would not be subject to the bona fide plan for the division of the land and improvements on it as declared in Sub-Section 6. I therefore feel that the duplex dwelling would be eligible to receive the benefits of the homestead exemption provided, of course, that the owner owned the entire dwelling and the entire land upon which the building was situated.
PUBLIC REVENUE-Homestead Exemption (Unofficial) Homestead exemption applies to all school taxes except those levied by municipalities.
April 23, 1948 Mr. H. C. Moss
I have your post card of April 7, 1948' in which you requested my opinion on the following question: "Is exempted property subject to school taxes voted last year?"
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the heads of the various State departments; therefore, this information is to be considered strictly of a personal nature and is not binding on anyone.
I am assuming from the facts stated in your card that you are referring to school taxes with reference to homestead property. I would like to respectfully call your attention to 1946 Georgia Laws, pages 12, 14, as follows:
"Exemption of home occupied by owner.-The homestead of each resident of Georgia actually occupied by the owner as a residence and homestead, and only so long as actually occupied by the owner primarily as such, but not to exceed $2,000 of its value, is hereby exempted from all ad valorem taxation for State, county and school purposes, except taxes levied by municipalities for school purposes and except to pay interest on and retire bonded indebted ness: ..."
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PUBLIC REVENUE-Homestead Exemption Sets out the provisions of the Homestead Exemption with reference to
premises used in part for business purposes.
May 17, 1948 Mr. F. M. Garnett Office Engineer State Highway Department of Georgia Division Number 5
I am pleased to acknowledge your letter of May 6, 1948 in which you requested my opinion relative to the homestead exemption of a house, one room of which is used for a grocery store.
As you know, the Attorney General is prohibited by law from renderingofficial opinions to anyone except the Governor and the head of the various State departments; therefore, this information is to be considered strictly of a personal nature and is not binding on anyone.
I respectfully call your attention to Sections 92-219 and 92-233, paragraph (3) of the Georgia Code Annotated.
"92-219. Exemption of home occupied by owner.-The homestead of each resident of Georgia actually occupied by the owner primarily as such, but not to exceed $2,000 of its value, is hereby exempted from all ad valorem taxation for State, county and school purposes, ..."
"92-233. Paragraph (3) Property used for commercial purposes or the conduct of a business shall not be classified for the purposes of this subsection as a homestead unless the business conducted or the commercial enterprise carried on is of such nature that same is customarily conducted at a place of residence. In no event shall property be exempt from taxation hereunder when a commercial enterprise requiring the services of employees is carried on on said property or when the nature of the business and the enterprise requires physical changes in the property to render same suitable for such business or enterprise."
I have made a careful search and find that no official opinion has been rendered on the direct point which you ask. However, it appears to me to be a question of fact and each case of this type must be determined on its individual merit. I, therefore, suggest that you take the matter up with the county attorney who will be in position to weigh all the facts and surrounding circ*mstances.
PUBLIC REVENUE-Homestead Exemption (Unofficial) A joint owner of property occupying the same as a homestead is entitled to the proportion of the total exemption which his interest in the property bears to the total propErty.
July 8, 1948 Mr. Willie H. Hill Tax Collector, Barrow County
I am pleased to acknowledge your letter of July 3, 1948 in which you requested my opinion relative to the eligibility of a joint owner of a dwelling for homestead exemption.
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As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the various State department heads; therefore, this information is purely of a personal nature and is not binding on anyone.
Georgia Code Section 92-233 (h) states: "In all the classes above defined, the homestead exempted must be actually occupied as the permanent residence and place of abode by the person awarded the exemption, and such homestead shall be the legal residence and domicile of such person for all purposes whatsoever." Georgia Code Section 92-219.1 states: "Proportionate exemption to occupant who is joint owner with another.W.here the property on which a homestead exemption is claimed is jointly owned by the occupant and others, the occupant or occupants shall be entitled to the proportion of the exemption allowed by law which his interest in the property bears to the total property. It appears from the above that the joint owner who is actually the occupant of the house is entitled to claim a proportionate exemption of the amount allowed by law in proportion to which the interest of the occupant bears to the total interest of the property. In other words if two brothers owned a house jointly and one brother occupied it, the brother occupying the house would be entitled to an exemption of 50% of the $2,000 now allowed by law.
PUBLIC REVENUE-Homestead Exemption (Unofficial) A homestead exemption applies only to the permanent residence of the taxpayer and his family.
July 15, 1948 Mr. Curtis Reid
This will acknowledge receipt of your letter of July 10, 1948 with reference to your residence and taxes pursuant thereto.
The Attorney General cannot under the law render official opinions to anyone except the Governor and heads of the various departments of State. However, I am glad to give you the following information and my personal views on the matter.
Powers and privileges of a municipal corporation are derived from the charter granted by a special act of the General Assembly and, therefore, the power of a municipal corporation to impose a street tax is not controlled by any general State law. As relates to your homestead exemption on your home in Atlanta, you would necessarily maintain your permanent place of residence here which constitutes the home of your family, in order to meet the requirements of law for such exemption. I should certainly think you would also be subject to the street tax imposed by the City of Atlanta as a resident of said city.
This being a matter that addresses itself to the city authorities, inasmuch as the city tax is imposed by ordinances and not by any general State law, I would suggest that you state the facts to them and abide their decision.
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PUBLIC REVENUE-Homestead Exemption (Unofficial) The homestead exemption does not apply to taxes to retire bonded indebtedness or to school taxes levied by municipalities.
October 20, 1948 Honorable T. J. Steed
This will acknowledge receipt of your letter of October 18, 1948, in which you inquire whether a County or the State can is~.ue bonds and levy a special tax on property exempt under the Homestead Exemption provirsion, or whether such property is free from any tax whatsoever, under the prc:1ent Georgia law and the Georgia Constitution.
Under the Constitution and laws of this State, the At'corney General is prohibited from giving official opinions to any on'l other than the Governor and heads of the various departments of State upon mai;t.2n; pertaining to the interests of the State. However, it is a pleasure for me to refer you to the provisions of law applicable to your question as a matter of information.
The following Section of the Code of Georgia Annotated, 1947 Cumulative Pocket Part, is quoted as being applicable to your question:
"32-1430. Tax levy to provide sinking fund to retire refunding bonds.Where an election held in the manner above provided results favorably to the issue of such bonds, the county board of education or corresponding body of independent school districts, as the case may be, shall recommend, and the board of county eommifsioners or ordinary, or municipal tax levying authorities, as the case may be, shall annually levy upon the property subject to taxation in the school district in which said election was held, such tax as may be necessary to provide a sinking fund for the retirement of said bonds and for paying the principal thereof and the interest thereon; this to be in addition to the general tax for the maintenance of the schools of said district."
Also quoted below is Section 92-219, Georgia Annotated Code, 1947 Cumulative Pocket Part:
"92-219. Exemptlon of home occupied by owner.-The homestead of each resident of Georgia actually occupied by the owner as a residence and homestead, and only so long as actually occupied by the owner prim'lrily as such, but not to exceed $2,000 of its value, is hereby exempted from all ad valorem taxation for State, county and school purposes, except tax;:;,; h:vic:d by municipalities for school purposes and except to pay interest on and retire bonded indebtedness: Provided, however, should the owner of a dwelling house on a farm, who is already entitled to homestead exemption, participate in the program of rural housing and obtain a new house under contract with the local housing authority, he shall be entitled to receive the same homestead exemption as allowed before making such contract. The General Assembly may from time to time lower said exemption to not less than $1,250. The value of all property in excess of the foregoing exemptions shall remain subject to taxation. Said exemptions shall be returned and claimed in such manner as prescribed by the General Assembly. The exemption herein provided for shall not apply to taxes levied by municipalities."
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PUBLIC REVENUE-Homestead Exemption (Uno.fficial) A homestead exemption is available only where 50o/o or more of the property is occupied by the owner as a residence and the balance is occupied by tenants as a residence.
November 12, 1948
Mr. C. W. McKinnon, Chairman Thomas County Board of Tax Assessors
I am pleased to acknowledge your letter of November 6, 1948, in which you requested my opinion relative to whether a property owner, who rents his upstairs to boarders and he and his family live in the downstairs, is eligible for homestead exemption.
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the various State department heads; therefore, this information is of a personal nature and is not binding on anyone.
Some of the pertinent statutes governing this problem are 92-233 (c), (2) and (3).
"'Homestead' further defined.-The word 'homestead' whenever used in this law (92-219 to 92-238, 92-9947), shall mean and is defined to be the following:
"(c) Where the building is occupied primarily as a dwelling. "(2) The applicant and his family occupy a portion, 50 per cent or more, as a dwelling and the remainder, 50 per cent. or less, is occupied by a tenant as a dwelling; or "(3) Property used for commercial purposes or the conduct of a business shall not be classified for the purposes of this subsection as a homestead unless the business conducted or the commercial enterprise carried on is of such nature that same is customarily conducted at a place of residence. In no event shall property be exempt from taxation hereunder when a commercial enterprise rJ;Jquiring the services of employees is carried on on said property or when the nature of the business and the enterprise requires physical changes in the property to render same suitable for such business or enterprise." In the case of Duncan vs. Proc'tor, 195 Ga. 499, this problem is discussed by the Supreme Court, and the court said on page 503: "The plaintiffs contended that section 5 of the homestead exemption act supra, is violative of article 7, section 2, paragraph 7, of the constitution (Code Ann. 205008), making provision for the grant of a homestead exemption, for the reason that one who is eligible under the constitution can not be deprived of such right of eligibility by statute, or by a person or board set up by statute to determine eligibility. The constitutional amendment exempted from ad valorem taxation the homestead of each residence actually occupied by the owner, to a value not exceeding $2000, only so long as occupied by the owner primarily as such. It did not grant to each resident a vested right to a $2000 exemption, but declared that such value would be determined in such manner and according to such rules and regulations as may be prescribed by law. The rules and regulations contained in section 5 of the enabling act, providing the manner in which the taxing officials should determine the eligibility of a resident to receive the exemption, are not violative of the constitutional amendment upon which the enabling act was based, for any reason assigned."
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The court, in other words, is simply saying that under the Constitution of this State the local taxing officials have the authority to determine who is eligible for a homestead exemption. The question that you present is one of fact as to whether the residence meets the requirements set forth by the Constitution and the Legislature in order to be exempt. Since this is a question of fact, it must be determined at the county level, as you are present and in a position to actually see the operation and to determine after weighing all of the circ*mstances whether such exemption is irt order. It is difficult to give any specific rule of thumb to determine these factual situations as each one must stand on its own particular merits. If you should rule adversely against the taxpayer, the Legislature has provided that he may appeal from the Board of Assessors to the Superior Court within ten days of such notice.
PUBLIC REVENUE-Home.tead Exemption (Unofficial) A political subdivision may repay out of County funds a real estate tax inadvertently paid by a lending agency on behalf of a serviceman.
November 23, 1948 Honorable Young H. Fraser Attorney at Law
Your letter addressed to the Honorable B. E. Thrasher, Jr., relative to the tax refund for homestead exemption that was inadvertently paid by the lending agency on the property of Captain J. F. Reynolds of DeKalb County, has been referred to me for attention and reply.
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the heads of the various State departments; therefore, this information is to be considered purely of a personal nature and not binding on anyone.
I respectfully call your attention to Code Section 92-8502, as follows: "Action by officials on personal knowledge.-Any State official or the official of any political subdivision of the State who has authority to assess or charge interest, penalties, costs or other fees for nonpayment or delinquency of taxes or failure to return real or personal property for taxes, shall strike the same from his records upon his own personal knowledge of the service with the armed forces of the person hereby exempted or upon evidence of such service as provided in section 92-8503." (Acts 1945, pp. 248, 249.) See, also, Code Section 92-8503 : "Evidence of service in armed forces.-The following shall be evidence that a person was a member of the armed forces of the United States of America: "(a) An honorable discharge. "(b) The personal examination by the proper tax official of the State or the political subdivision of any selective service board. "(c) The written statement of any official of a selective service board. " (d) The written statement or certificate of any commissioned officer of the person exempted. "(e) The written statement of any person exempted if such execution be attested, verified or acknowledged by a commissioned officer of the armed forces.
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"(f) An affidavit of the person exempted, if his service has terminated. "(g) An affidavit of a relative of the person exempted. "In each of the above cases except (a) and (b), the written statement, certificate or affidavit shall state the name of the person exempted, his residence at the time of enlistment or induction, and the approximate time and nature of the termination of such service, if terminated, and such evidence, excepting (a) and (b), shall remain on file with the tax official receiving same!' In view of the above statutes, it appears to me in this case that the first thing to be determined is purely a question of fact whether the taxing officials of DeKalb County had personal knowledge of Captain Reynolds' overseas service. If they had such knowledge, I am of the opinion that a homestead exemption would come under the above statutes. Of course, as I pointed out above, this is a question of fact which naturally will have to be determined by the county authorities. See Code Section 92-8504. "Refund of penalties paid.-Any penalty, interest, cost or other fees for failure to return real or personal property or to pay the tax thereon at the time when due which shall have been paid during the period of military service herein exempted shall be refunded by the proper tax official of the State or the political subdivisions out of funds not otherwise appropriated. In the event that there was a distribution of a penalty or interest payment by a tax official to another tax official, whatever tax unit receiving any part of said payment or interest shall reimburse the tax official refunding the same for its respective part of such penalty or interest so received or collected." It is noted that this statute provides that the political subdivision of the State may make refunds in these situations out of county funds not otherwise appropriated. Therefore, it is my unofficial opinion that if Captain Reynolds meets tbe requirements set forth in Code Sections 92-8502 and 92-&503 that DeKalb County would have authority to refund him the homestead exemption tax that w:.w ir:advert'c'ntly paid by his lending agency.
PUBLIC REVENUE-Homestead Exemption (Unofficial) An applieant for a homestead exemption must have a right to possession under a bona fide claim or ownership, which contemplates duly recorded fee title, estate for life, or contract of purchase.
December 7, 1948
Honorable W. C. Brinson I regret tl:o delay in the reply to your letter relative to what title an appli-
cant must show to be entitled to a homestead exemption, but as you can readily understand, the change of administration has unduly taxed the Law Department.
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the heads of the various State departments; therefore, this information is to be considered purely of a personal nature and is not binding on anyone.
A close scrutiny of the homestead statute reveals that Section 92-223 requires that a homestead application shall contain a description of the property, when and from whom acquired, the kind of title held, etc.
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Further, Section 92-225 states that the applicant must answer all questions clearly to be entitled to an approval of said application. Also Section 92-232, in defining homestead, states:
"'Homestead' defined.-As used in this law, Section 92-219 to 92-238, 929947, 'homestead' means real property owned by the applicant on January 1st of the taxable year and who is in possession thereof and upon which said applicant resides and the land immediately surrounding said residence and to which he or she has a right to said possession under bona fide claim; of ow<nership.''
Section 92-233 (b) states: "Where the person who is the applicant holds the bona fide fee title (although subject to mortgage or debt deed) or an estate for life, or holds under any bona fide contract of purchase providing for the conveyance of title to the applicant upon performance of the said contract." Also Code Section 92-228 sets forth that the official receiving the application shall determine the eligibility of the applicant, and then he shall turn the application to the Board of Assessors for final approbation. In view of the above, it appears to me that the taxing official receiving the application and the Board of Assessors have the authority to question the taxpayer's title and require him to show that he has a bona fide title required by law. Although the law does not specifically require that the taxpayer record his title, it clearly, by implication, requires such a recordation as throughout the statute the word "bona fide" is used. To have a bona fide title, naturally one must record it to put the world on notice of such title.
PUBLIC REVENUE-Income Tax (Unofficial) Income to a non-resident natural person from stock dividends or for personal services is not subject to income tax.
March 26, 1948 Bourgeo's, Russell, Toups & Company Certified Public Accountants
This will acknowledge receipt of your letter of March 13, 1948 addressed to the Attorney General in reference to income taxes of a non-resident of this State, which has been referred to me for reply.
As you know, the Attorney General and his Assistants are prohibited by law from giving official opinions to anyone other than the heads of the various executive departments of the State. However, I am pleased to give you my personal opinion on the matter which is naturally not binding on anyone.
Section 92-3112 of the Georgia Code states: "Nonresidents. (a) The tax imposed by this law shall apply to the entire net income received from all property owned or from business carried on in this State by natural persons not residents of the State; provided, that income from a mercantile or manufacturing business, rentals, royalties, or operation of any farm, mine, or quarry, or from the sale of real or personal property, for the purposes of taxation shall follow the situs of the property or business from which derived; and all other income, including that derived from personal services, professions, and vocations, and from land contracts, mortgages, stocks, bonds, and securities, shall follow the residence of the nonresident recipient. . . ." From the facts given in your letter, it appears to me that the income of
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your client is for personal services rendered, which income follows the residence of the nonresident recipient.
Regarding the liability of the income of stock dividends of a non-resident, it also appears to be covered by the above statute in that such income from stocks and bonds, etc., follows the residence of the recipient.
PUBLIC REVENUE-Income Tax (Unofficial) 1. An out-of-state company with warehouse in Georgia for storage and sale of merchandise in Georgia is subject to income tax and occupation tax. 2. In such case, the salesmen need not have peddlers' licenses. 3. Should the company purchase property in Georgia it will be liable for ad valorem taxes thereon.
April 8, 1948 Mr. Curtis M. Cook Attorney at Law
I have your letter of March 25, in which you request my opinion as to the tax liability which the B. C. Armature Company, of Washington, D. C., might incur in Georgia under two factual situations presented by you.
As you know, I am prohibited by law from rendering official opinions to anyone except the Governor and heads of the various State departments, therefore, the following remarks are entirely personal, unofficial, and not binding on anyone.
The first factual situation is as follows: The Company, an out of State concern with no offices in Georgia, made sales from its out of State offices to the out of State offices of the Western Auto Supply Stores. Deliveries are made by agents of the Company to the Western Auto Supply Stores in Georgia. The taxability of the Company under this situation will be determined by an interpretation of the Georgia corporation income tax, found at Georgia Code Annotated, Section 92-3113. The applicability of this Section to businesses such as the Armature Company is at present sub judice. Therefore, I hesitate to issue any opinion, even an unofficial one, until final determination by the Courts. For your information, however, see: McLeod v. Dilworth, 322 U. S. 327 (1944). It seems to me that this case is on all fours with the instant factual situation, although the taxing statute involved in the decided case is somewhat different. The applicability of other Georgia taxing statutes would probably be determined by a decision on the applicability of the income tax. Therefore, I must also decline to give my opinion as to the liability of the Company for occupation taxes and other taxes levied on firms engaged in selling electrical equipment. The second factual situation presented in your question is as follows: The Company plans to establish a distributing warehouse in Georgia and to store and sell armatures therefrom. Sales and deliveries will be made in Georgia. It is my opinion that upon establishment of such a warehouse, the Company will be liable for income tax under the Three Factor ratio set out in Code Section 92-3113. See: Parke .Pavis v. Cook, 198 Ga. 457.
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Further, it is my opm10n that the Company will be liable for occupation taxes as set out in Code Section 92-902. See: Davis v. Woolworth, 186 Ga. 663.
From the factual situation as presented, it is my opinion that the Company salesmen will not be required to obtain peddlers licenses under Code Section 84-2001.
Should the Company purchase any property in Georgia, it will of course be liable for ad valorem taxes on such property.
PUBLIC REVENUE-Income Tax Where joint Federal income tax returns are filed, for the purposes of separate Georgia income tax returns the spouse actually paying the Federal tax may take the deduction.
May 25, 1948 Mr. F. L. Dillard, Director Income Tax Unit Department of Revenue
I am pleased to acknowledge your letter of May 14, 1948 relative to the deductibility of Federal Income Taxes on Georgia income tax returns by individuals under the Federal Revenue Tax Act of 1948.
On April 2, 1948 the Federal Revenue Tax Act of 1948 was enacted into law, and provision was made in this act for income splitting by husband and. wife. This is accomplished by giving the husband and wife in all states option to file joint returns. On such a return their combined net income and their combined exemptions are divided by two. A tax is computed for one of the segments and is then multiplied by two. When such a return is filed by a husband and wife, they both become jointly and severally liable for the tax.
As a result of this new legislation the problem has now arisen on how to treat Federal income tax deductions as computed under the split income provisions, when a husband and wife file separate Georgia income tax returns. Cod~ Section 92-3109 (c) states:
"Sec. 92-3109(c)-Taxes. Effective January 1, 1938, taxes paid or accrued within the taxable year, except state income taxes, estate and inheritance taxes, gift taxes, cigar and cigarette taxes, gasoline taxes and taxes assessed for local benefits of a kind tending to increase the value of the property assessed, provided, however, that the taxpayer m,ay only deduct from gross incom,e, tho amount of Federal net income taxes shown to be due and actually paid during the immediately preceding taxable year on the return filed by said taxpayer in such preceding taxable year, and provided further that where the entire net income of the taxpayer is not taxable by the State of Georgia, then the taxpayer may only deduct such Federal net income taxes in the same proportion that the net income taxable by the State of Georgia bears to the entire net income taxable by the Federal government." (Emphasis provided)
You will note that the statute points out that Federal income taxes may be deducted when shown to be due and actually paid.
Since this is a new question, naturally there are no Georgia or Federal cases on this point: However, the Board of Tax Appeals has passed on several situations which are good analogies to the instant problem.
"Taxes on real estate owned by husband and wife 'jointly', not paid in any
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part by the wife, are not deductible in any part by her." Tracy vs. Commissioner, 25 BTA 1055.
"State income taxes.-Where a husband and wife file a joint State income tax return and there is a joint and several liability to pay the tax, the spouse paying the entire tax may deduct such amount in his or her separate Federal return:" Chas. F. Fawsett, Petitioner vs. Commissioner of Internal Revenue, 80 BTA 908.
"Liability of husband and wife for payment of the tax was equal under California law. The Tax Court holds that a husband who pays a State tax for which he is jointly and severally liable, may deduct it in his Federal income tax return." Al Jolson vs. Commissioner, 3 Tax Court 1184.
"Where property is held by husband and wife as tenants by entireties, either spouse may deduct in his or her separate return taxes and interest paid by him or her during the taxable year, if no part of such taxes or interest has been deducted as an accrued item by either in any taxable year." C. F. Nico demus, Jr., vs. Commissioner, 26 BTA 125, acquiesced in GCM 15530, CB XIV-2.
The above cases are summarized by Mertens in his Law of Federal Taxation, Volume 5, paragraph 27.02 in the following language:
"Where there is a joint and several liability for a tax, the tax is deductible by the person who pays it. This principle has been applied in the case of joint state income tax returns of husband and wife where the statute imposed a joint and several liability to pay the tax. It has likewise been applied to real property taxes in the case of real estate owned by husband and wife as tenants by the entirety."
Your request for a ruling on this question is anticipatory, and rendering opinions on a question of this type is difficult due to the fact that there are many ramifications which are not apparent and will not come to life until the issue actually comes into existence. However, it appears to me in view of our Georgia statute which states that Federal income taxes are deductible when actually paid, and the Board of Tax Appeals and Tax Court cases cited above, it would be equitable to allow the spouse who actually pays the tax to take the deduction. This would have the effect of permitting the deduction to be claimed by either spouse to their advantage.
PUBLIC REVENUE-Income Tax 1. Any amounts recaptured by the Federal Government on renegotiation of a taxpayer's net income must be deducted by the State from the Georgia income for that year. 2. A tax refund by the Federal Government to a Georgia taxpayer received in a year in which there were no operations can not be reached.
Aug. 1, 1948 Memorandum To: Mr. Herbert Moffett From: Income Tax Department
This is in compliance with your request that the Law Department prepare a memorandum ruling as to the proper method of computing Bell Aircraft Corporation's 1945 income tax, or more specifically how Bell Aircraft's renegotiation of its War contract, and subsequent excess profit and income tax refund for 1945 should be computed under the Georgia State income tax law.
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From the facts it appears that the Bell Aircraft Corporation estimated on its 1945 State income tax return that the Federal Government would recapture $8,000,000.00 under the renegotiation provision of its War contract. Actually, the War Contract Price Adjustment Board found that the sum was $8,542,792.00. Since their net income for 1945 was reduced by the above figure, the corporation requested that the Federal Government refund to it income taxes and excess profits which had been paid on the net income before the action of the War Contract Price Adjustment Board. This refund amounted to $6,.217,022.11. Where a corporation owes the Federal Government on a renegotiation contract, and the Government owes the corporation a refund of income taxes paid, the renegotiation act provides for under Section 403 (c) (2) (d) that the accounts may be settled by a payment of net differences. Or in other words, Bell Aircraft pays the Government $2,325,769.89 and both accounts are thereby settled. Another very pertinent fact in this problem is that Bell Aircraft did not operate in Georgia during the year 1946.
These transactions present the following questions from the State of Georgia's viewpoint:
1. What effect does the reduction of net income of $8,542,792.00 by the War Price Adjustment Board have on the State income tax?
2. What effect does the refund by the Federal Government of $6,217,022.11 have on the State income tax law?
When considering the first question, I respectfully call your attention to the fact that the Law Department is bound by an official opinion rendered by the Honorable T. Grady Head when he was Attorney General, dated June 23, 1943, a copy of which is attached hereto. This opinion states in a nutshell that when the Georgia income return is filed before renegotiation takes place, it should be treated as a tentative return since it is impossible for the taxpayer to know what the effect of renegotiation would have on his net income for the year. After renegotiation takes place the return should be amended to reflect the accurate income of the taxpayer.
In 1945 the Supreme Court of South Carolina ruled on this question in the case of Southern Weaving Inc. vs. Query, et al, 34 S. E. (2d) p. 51. The court stated:
"When the refund in question was made by the respondent to the government, the amount returned could no longer be regarded as having been income at any time. The law does not contemplate that that is income of the taxpayer which belongs to another."
It is interesting to note in this case the con:entions of the State of South Carolina. The Attorney General argued that the effect of rEonegotiation was simply a deduction and since 'the South Carolina law did not provide for such a deduction, it was not allowable. Another theory was that since South Carolina was not a party to the renegotiation proceedings they were not bound by it, and further the renegotiation act was unconstitutional. The court found no merit in these arguments and it appears to me that it was merely a "State's Rights" approach!
The second question presents a considerably more difficult problem. It has been suggested that since Bell did not actually operate in Georgia, but was set up to do business that the tax refund of 1945 should be included as income in 1946. R'egulation 92-3109 (c) states:
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'' ... However, any refund of Federal income tax is includable in income, when received, to the extent that the proportion of such refund was allowed as a deduction in any previous year."
" ... The tax allowable is the Federal income tax for the prior year only, paid in the taxable year."
Construing these two regulations together, it appears that Federal income taxes for the prior year only are deductible and subsequent refunds are added to income in the proportion in the year in which they were deducted. Thus, the refund here is the result of the Federal income tax paid for the year 1945 and would have operated to lessen the Federal tax deduction of the Bell Corporation for the year 1946. On the other hand, if the Full Federal tax deduction had been allowed in 1946, and in a subsequent year $6,217,022.11 had been refunded, then the refund would have been included in income in the subsequent year to the extent of the proportion of such refund which was allowed as a deduction in 1946.
See, also, in this connection the Att<rrney General's opinion referred to above.
In view of the above, it is my opinion that the sum recaptured by the Federal Government on the renegotiation of the Bell Aircraft Corporation's 194::> net income must be deducted by the State when computing the State's 1945 income tax in order to reflect the real income received by the taxpayer.
Also, the Federal tax refund to the Bell Aircraft Corporation for 1945 could only be used to lessen the deduction of the Bell Corporation of its Federal tax deduction for the year 1946. Since the corporation did not operate in 1946, I can find no way that the State can reach this refund.
PUBLIC REVENUE-Income Tax The use by an air line of scheduled mile basis in computing tax is conditioned upon annual application for permission, and the Commissioner has three years within which to notify taxpayer of rejection of such formula.
December 2, 1948 Honorable Fielding L. Dillard Director, Income Tax Unit State Revenue Department
I regret the delay in answering your questions relative to an interpretation of Code Section 92-3115 regarding the case of Del~a Air Lines, but as you know, due to the change in administration, the Law Department has been unduly taxed.
The facts in this case appear to be that Delta Air Lines filed delinquent State income tax returns for the years 1935 through 1939 inclusive on December 16, 1939. In compiling the returns, Delta used the scheduled miles basis of apportioning income in lieu of the statutory basis provided for in the Code Section 92-3113. The agent, in examining the returns for the above years, permitted the scheduled miles basis and his action was latE:r concurred in at a conference by the Director of the Income Tax Unit. The facts further show that Delta has never filed a formal application to use the special formula, and the Revenue Department has not given Delta any writte,n permission to use such a form,ula.
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An audit was made of Delta's books for the years 1944, 1945 and 1946, and this audit revealed that Delta was still applying the scheduled miles basis of apportionment. The Revenue Department placed the Air Lines on the statutory basis and sent the taxpayer a deficiency notice covering the years from 1944 through 1946.
Taxpayer's attorney has questioned the authority of the Revenue Department to apply the statutory basis for the years 1944, 1945 and 1946.
The Code Section involved in this case is 92-3115 and it states: "Allocation in special cases.-If any corporation or non-resident shall show, by any other method of allocation than the processes or formulas prescribed by this law, that such other method reflects more clearly the income attributable to the trade or business within the State, application for permission to base the return upon such other method shall be considered by the Commission. The application shall be accompanied by a statement setting forth in detail, with full explanations, the method the taxpayer believes will more nearly reflect its income from business within the State. If the Commission concludes that the method of allocation and apportionment submitted by the taxpayer is in fact inapplicable and inequitable, they shall reject the application and so notify the taxpayer, but failure to receive such notice shall not operate to relieve the taxpayer from liability for not filing the return on its due date and under the allocation and apportionment method as prescribed by this law." Carefully analyzing the above section, it is noted that the statute requires that the taxpayer file an application accompanied by a statement setting forth in detail, with full explanation, the method the taxpayer believes will more clearly reflect income from business within the State. This has not been done, and it is my opinion that a reasonable interpretation of this statute would require the taxpayer to file his application annually. It is a well settled rule of law that taxes for one year are not res judicata for another year. KeokuW and W. R. Co. v. Missouri, 152 U. S. 301. In other words, each tax year is a separate entity and if the taxpayer desires this special concession, then the burden would be upon him to apply for it annually. The taxpayer may take the position that by filing the return it is tantamount to the application. I do not agree with this proposition, but for the sake of argument, let us assume that its position is sound. Section 92-3115 sets forth that if the Commissioner concludes that the taxpayer's apportionment ig unfair and inequitable, that he shall reject it and notify the taxpayer. Section 92-3302 (a) provides that the Commissioner has three years to assess the taxes after the return is filed. Therefore, it would seem to follow that the Commissioner has three years in which to exercise his discretion to reject or approve such special formula. In view of the above, it is my opinion that the taxpayer in the instant case has not complied with the law by filing the proper application for special formula consideration annually, and it is my further opinion that the Commissioner of Revenue has within three years of the filing of the return to notify the taxpayer whether or not, in his discretion, he approved or rejects such a
:formula.
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PUBLIC REVENUE-Industrial Exemptions Towns and Counties may not grant tax exemptions as an inducement to industries to locate within their boundaries.
December 28, 1948 Hon. R. V. Connerat Agricultural and Industrial Development Board
I am pleased to acknowledge your letter of December 15th, in which you request an official opinion on the following question:
"We would appreciate your advising us if there is any general State law barring towns and counties from offering inducements or concessions to new industries to locate within their geographical boundaries."
Your inquiry is answered by Section 2-5405 of the State Constitution, which reads as follows:
"Existing exemptions under the amendment to the Constitution providing for the exemption of certain industries from taxation appearing in Acts of the General' Assembly of 1923, extra session, page 67, ratified November 4, 1924, shall continue of force until the expiration of the term for which granted."
You will note that the above provision of the Constitution only continue~ in force, exemptions wh'ch were previously granted under the Constitution as it existed prior to 1945. Since the adoption of the new Constitution, the exemption of industries from taxation as appearing in the Acts of the Extra Session of 1923, page 67, is no longer effective except in those instances where the exemption was obtained prior to the adoption of the new Constitution.
I also direct your attention to the last sentence of Section 2-5404 of the Constitution, which provides as follows:
"All laws exempting property from taxation, other than the property herein enumerated, shall be void."
The Supreme Court of Georgia in the case of Nonis vs. Town of Union City, 184 Ga. p. 283, held that the Town of Union City in 1921 was unauthorized to exempt from taxation all new industries within its corporate limits for a period of five years. This ordinance was passed two years prior to the constitutional amendment ratified November 4, 1924, referred to in Section 2-5405 of the 1945 State Constitution. The Court in this case held:
"The ordinance at the time of its passage and at the present time is void under the constitution of the State, Art. 7, Section 2, Paragraph 4. (Code Section 2-5005) which declares that 'all laws exempting property from taxation other than the property herein enumerated shall be void.' "
In view of the above provisions of law, I am of the opinion that towns and counties are prohibited from granting tax exemptions to new industries in order to have them locate within their geographical boundaries.
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PUBLIC REVENUE-Motor Fuel Tax The component paTt of kerosene blended with fuel oil to produce a heavier product, not kerosene, is not subject to the 1 cent per gallon kerosene tax.
February 13, 1948
Honorable Glenn S. Phillips State Revenue Commissioner
This will acknowledge receipt of your letter of February 13, 1948, in which you request my opinion upon the following question:
"Is the component part or quantity of kerosene blended or compounded with fuel oil to produce a heavier product which is not kerosene as defined in the Georgia "Motor Fuel Tax Aet", as amended in 1945, subject to the one cent per cnEon kerosene tax?"
I have carefully reviewed the Georgia "Motor Fuel Tax Law" as amended in 1945, the interpretation that I made on April 20, 1945, as State Revenue Commissioner, and that of January 7, 1946 by Revenue Commissioner M. E. Thompson, all bearing on the above subject.
Kerosene falls within the definition of motor fuel when it is actually used, sold, bought, handled, possessed, compounded, or blended for the propulsion of motor vehicles on the public highways, and the sale or use thereof f;hall not be taxable as kerosene but shall be taxable as motor fuel when wld or used to propel motor vehicles on the public highways.
The law clearly states, as amended by the Act of 1945, that the taxes shall not be construed to apply to the storage, withdrawal, compounding, blending, or any other handling of motor fuel andjor kerosene preliminary or preparatory to such sale or use.
Kerosene, under the law, becomes motor fuel even when possessed for use as a motor fuel for the propulsion of motor vehicles on the public highways, but the tax does not attach thereto until it is sold or used for tmch purposes. Neither does the tax attach to kerosene as such until sold or us2d. Under the 1945 amendment to the "Motor Vehicle Tax Law" and the decis:on in the case of Thompson vs. Eastern Air Lins, 200 Ga. 216, 225, the "use" of motor fuel andjor kerosene could only be defined as when it is in some way consumed. The "use" means in its ordinary sense the very opposite of preserving it by storage. The decis" on of the court gives the word "use" i:.s ordinary sense and the legislature expressly provided in the amendment of 1945 to the "Motor Fuel Tax Law," "that no tax should be imposed upon storage and withdrawal, but on its sale and use."
The tax, tnnefore, attaches to kerosene as such when it is eithe1 ~Jold or used and on kerosene as motor fuel when it is sold or usc:d as a motor fuel for the propulsion of motor veh;c]es on the public h:ghways of this State, whether or not it is compounded or blended.
I, as S(ate Revenue Commissioner, on April 20, 1945 interpreted the law in question as follows:
"This bill provides that the tax shall not accrue on kerosene with respect to the storage, withdrawal, compounding, blending or any other handling of such fuel andjor kerosene preliminary or preparatory to sueh sale or use. It would permit the compounding of motor fuel or kerosene to heavier products which could be sold free of any tax provided the resulting products do not come within the definition of motor fuel or kerosene, as the case may be. It simply
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provides for kerosene to be taxed at only 6c per gallon when it is used or blended for use as motor fuel in the propulsion of motor vehicles on the public highways and relieves the payment of the additional 1c per gallon as previously taxed when so used."
Honorable M. E. Thompson, former State Revenue Commissioner, on January 7, 1946 interpreted the law in question as follows:
"This bill provides that the tax shall not accrue on kerosene with respect to the storage, withdrawal, compounding, blending or any other handling of such fuel andjor kerosene preliminary or preparatory to such sale or use. It would permit the compounding of motor fuel or kerosene to heavier products which could be sold free of any tax provided the resulting products do not come within the definition of motor fuel or kerosene, as the case may be. It simply provides for kerosene to be taxed at only 6c per gallon when it is used or blended for use as motor fuel in the propulsion of motor vehicles on the public highways and relieves the payment of the additional 1c per gallon as previously taxed when so used."
In keeping with my previous interpretation and that of my successor in 'Office, it is my opinion:
(1) That the kerosene tax of 1c per gallon is only on the sale or use (consumption) of kerosene known and defined by the Georgia "Motor Fuel Tax Law" as amended in 1945.
(2) That when kerosene is compounded or blended as an ingredient to make an entirely different heavier product, such compounding or blending is not "use" as contemplated by the statute and as defined in the case of Thom.pson vs, Eastern Air Lines, 200 Ga. 216.
(3) That when such blended product is ultimately used, as that word is defined in the above cited case, or sold as contemplated by statute, it is no~ kerosene.
(4) That the 1c per gallon kerosene tax does not apply to kerosene compounded or blended with fuel oil (not coloring fluid) to produce a heavier product which is not kerosene as defined by the Georgia "Motor Fuel Tax Law" as amended in 1945.
(5) That the quantity or component part of kerosene compounded or blended with fuel oil (not coloring fluid) to produce a heavier product which is not kerosene as defined by the Georgia "Motor Fuel Tax Law" as amended in 1945 is not subject to the 1c per gallon kerosene tax.
PUBLIC REVENUE-Motor Vehicle Licenses A motor carrier, over 40 percent of whose mileage occurs in South Carolina, is entitled, by reason of requirement for licensing of its vehicles in that State, to a refund from the State of Georgia under its Reciprocal Agreement with South Carolina.
December 20, 1948 Honorable Charles D. Redwine State Revenue Commissioner
I am in receipt of a letter from Mr. R. S. Reese, Executive Secretary of the Motor Vehicle Association of Georgia, Inc., stating that he had conferred with you December 14 with respect to the refund application for S. J. Morris
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Motor Express, Inc., which was filed with your predecessor several weeks before he resigned. Mr. Reese advises me that you cannot locate the file which was presumably left with Mr. Musgrove.
The facts in this case are simply these. Son after S. J. Morris Motor Express, Inc., filed their application for refund, I was requested to render an official opinion on the question of whether such a refund would be legal. The opinion was written by Mr. Claude Shaw, Assistant Attorney General, who was unfamiliar with a reciprocity arrangement the members of the State Reciprocal Commission had with a similar Commission representing the State of South Carolina.
Our State Commission was composed of C. A. Williams, Commissioner of Public Safety, Walter R. McDonald, Public Service Commissioner, and me. Not knowing of the reciprocal arrangement made between our State Commission and the Commission of South Carolina, Mr. Shaw wrote an opinion in which he held that the refund would not be authorized.
After this matter was called to the attention of Mr. Musgrove, Mr. Shaw and me, Mr. Musgrove withdrew his request for an opinion and Mr. McDonald in turn advised him by letter which was approved by me as to facts, showing that under our agreement with the Commission of South Carolina, the S. J. Morris Motor Express, Inc., was entitled to the refund.
In view of the withdrawal of the request for the official opinion by Mr. Musgrove on which Mr. Shaw based his conclusion that the corporation was not entitled to a refund, and since the Commission, including Mr. Williams. Mr. McDonald and me, is agreed on the arrangement between the two States as applied to this case, it is my official opinion that the corporation is entitled to the refund.
The confusion and delay in this case were due to 1. the fact that S. J. Morris Motor Express, Inc., did not know he was entitled to the reduced rate at the time he bought his tags and 2. my Assistant, Mr. Shaw, wa~ not familiar with the reciprocal arrangement we had worked out with the State of South. Carolina.
Mr. Reese is correct in his statement that this case has had rather un-fortunate handling due to the two foregoing factors. Since I am familiar with the facts and am here ruling officially that the corporation is entitled to the refund, I will appreciate any cooperation you can give Mr. Reese and the. applicant in the premises.
PUBLIC REVENUE-Sales and Use Tax (Unofficial) Georgia has no sales or use tax.
May 6, 1948 Koplovitz & Cohen Attorneys and Counselors at Law
I am pleased to acknowledge your letter of April 22, 1948, in which you requested a copy of the sales and use tax laws of the State of Georgia, and further requested my opinion as to the liability of your client under such laws.
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the heads of the various.
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State departments; therefore, this information is to be considered strictly of a personal nature :md is not binding on anyone.
The State of CcorE;ia docs not have a sales or use tax law. However, I will call your at t"~ntion to the fact that Georgia does have a State income tax law, and a determ'nation cannot be made at this time as to whether your client would bc subj<Jet to its provisions since a somewhat similar case to yours is now pending litigation.
PUBLIC REVENUE-State Revenue Department Liquor agents subpoenaed as State witnesses outside the county of their residence may not receive witness fees or mileage.
March 15, 1948 Honorable R. B. Muse, Chairman Board of County Commissioners
This will acknowkdge receipt of your letter of March 2, 1948, in which you request that I give you an opinion as to whether or not State Revenue Department liquor agents who have been subpoenaed as witnesses for the State to attend court outside of the county of their residence are entitled to a mileage and witness fee as provided under Code Section 38-1902 of the 1938 Annotated Code.
Under the l::tw I am prohibited from giving opinions to anyone except the Governor and. t;;c hr;ads of tt.e various departments of the State, and then only upon m:atteTs in wi1ich the State is involved. However, I am pleased to be of such assist:mce that I can to you in helping you solve your problem, and anything that I may Bay in reply to your letter is to be considered unofficial and purely as information.
The Liq1;or Control Unit of the State Department of Revenue advises me that on M<!.rch 11, 1948 a regulation was adopted by the State Revenue Department prohibiting <lny State Revenue Department liquor agent from receiving the fees provided under Code Section 38' 1902. This regulation, I am informed, WD.s adopted not due io any legal prohibition, but from the desire of the Revenue Department to p1event any unjust criticism of its agents by anyone unfamiliar with the qu~:otion.
PUBLIC REVENUE-Tax Collectors Lists commissions of County Tax Collectors on school taxes.
April 8, 1948 Roy D. Hazlett and Associates Public Accountants and Auditors
Receipt is acknowledged of your letter of March 31, 1948 addressed to the Attorney General relative to your audit of the books of the Tax Commissioner of Catoosa County, Georgia, which has been referred to me for reply.
As you know, the Attorney General and his assistants are prohibited by law from rendering official opinions to anyone except the Governor and th0 heads of the various State Departments. However, I respectfully call your
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attention to the following sections of the Georgia Code Annotated which may
be of some help to you.
"32-1106. Collection of school taxes by county tax collector; commissions.-
The county tax collector shall continue to collect unpaid county school taxes
formerly levied and payable under the provisions of this section, and shall be
entitled to commission of 272 per cent. for collecting the same. He shall pay
over to the board of education all moneys collected for the schools once a month.
He shall also collect all county school taxes levied under the authority of Article
VIII, Section XII, Paragraph I (section 2-7501) of the Constitution of this
State, upon which collections he shall receive a commission of 272 per cent.
He shall likewise pay over to the county board of education once a month, all
moneys collected under such levies. In those counties where the tax collector
or tax commissioner is on a salary basis the fees herein provided for shall be
collected by him and paid over to the proper fiscal authorities."
"92-5304. To what commissions apply; delinquent taxes.-As far as the
tax collectors are concerned, the rates and schedules prescribed by section
92-5301 shall apply upon the first 90 per cent. of the ad valorem net digests
collected by the tax collector. On all taxes collected in excess of 90 per cent.
of the total of taxes due, according to the tax net digest, the tax collector's
commission shall be for such taxes 10 per cent. of all such collections, irrespec-
tive of the above and foregoing schedule of rates. In those counties where the'
tax collector or tax commissioner as the case may be is paid a salary this
said commission shall be paid to the said tax collector above and beyond the
said salary."
Since this is a county matter, I suggest that you discuss it with the county
attorney, and I hope the above information may be of some assistance to you.
PUBLIC REVENUE-Tax Collectors To comply with the Constitutional provision, the office created by the legi;;. lature for Union County by consolidating offices of Tax Collector and Tax Receiver in the office of "Tax Director" shall be denominated in bonds as "Tax Commissioner (Director of Taxes)".
December 7, 1948 Honorable W. Harvey Atkinson, Director Property and License Tax Unit State Revenue Department
I am pleased to acknowledge your letter of November 24th. You stated that the Legislature in 1947 passed an Act combining U12 office of Tax Collector and Tax Receiver in Union County and gave tl1e n2w office the title of Tax Director. You specifically requested an opin'on on how to make out the bond covering such office. Georgia Laws, 1947, page 1233, Section 2 states: "Be it further enacted by the authority aforesaid, that the office of Tax Director of Union County, Georgia, is hereby created in lieu of said abolished offices, and the rights, duties, and liabilities of the Tax Director of Union County, Georgia, shall be the same as the rights, duties and liabilities of the Tax Collector and Tax Receiver as they now exist, except as hereinafter provided for and fixed."
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It is also noted that the Constitution of 1945, Code Section 2-7806 provides; "County Governments uniform; exceptions.-Whatever tribunal, or officers, may be created by the General Assembly for the transaction of county matters, shall be uniform throughout the State, and of the same name, jurisdiction, and remedies, except that the General Assembly may provide for Commissioners of Roads and Revenues in any county, may abolish the office of County Treasurer in any county, may fix the compensation of County Treasurers, and may consolidate the offices of Tax Receiver and Tax Collector in the office of Tax Commissioner, and may fix his compensation without respect to uniformity." Obviously, it was the intent of the Legislature to combine the office of Tax Collector and Tax Receiver into one office under the authority of the above constitutional provision, and the title of Tax Director was merely a misnomer. It has been held that in construing tax statutes a liberal rule of the interpretation must be indulged in order to aid the taxing power of the State. John J. Sinson Co. vs. U. S. 182 Federal 573. In view of the above, it is my recommendation that the bond be made out. in the following manner: Name, Tax Commissioner (Director of Taxes). It is my opinion that his office is certainly a de facto one; however, it is my further recommendation that the Legislators from Union County should have this Act amended in the next session of the Legislature by striking the words "Director of Taxes" and substitute the words "Tax Commissioner" to make the office a de jure one.
PUBLIC REVENUE-Tax Collectors An outgoing tax collector is entitled to fees on an execution issued by him if collected from defendant.
December 30, 1948 Honorable W. Harvey Atkinson, Director Property and License Tax Unit
I am pleased to acknowledge your letter of December 22, 1948, in which you requested my opinion relative to whether an outgoing Tax Collector is entitled to 50 cents on executions issued by him.
Section 92-8002 states the following: "Fee for issuing tax executions.-Tax collectors shall be allowed a fee of
50 cents for issuing tax executions; but no tax collector, sheriff, or constable shall receive costs on said executions unless the same shall be collected from the defendant."
From the foregoing statute, it is my opinion that the Tax Collector who issued the execution is entitled to the fee of 50 cents if the tax is collected from the defendant.
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PUBLIC REVENUE-Tax Collectors (Unofficial) Upon delivery of records to successor, outgoing collector relieved of liability save for prior default.
December 30, 1948 Mr. H. D. Ray, Tax Collector Gilmer County
I am pleased to acknowledge your letter of December 24, 1948, in which you specifically asked my opinion as follows :
"Please give me an opinion of law on taxes for which outgoing and incoming collectors are liable."
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the heads of the various State departments. Therefore, this information is to be considered purely of a personal nature and is not binding on anyone.
Code Section 89-830 states the following: "Uncompleted duties of outgoing tax collector, etc. Liability of collector and surety.-ln case a tax collector has been succeeded in office by another person, a list of the uncollected items of tax appearing in the account of the outgoing tax collector at the time of the accounting as stated above shall be furnished by the Comptroller General or the county authority to the tax collector then in office, and it shall thenceforth be his duty, as the taxes are collected, to pay to the outgoing tax collector one-half of the commissions and to retain for his services one-half, the commissions to be calculated as if the amounts had been collected by the outgoing tax collector; and the outgoing tax collecto:r shall no longer have the r"ght or the duty to collect the taxes or to enforce the executions issued therefor, but all uncompleted duties in respect thereof shall pass to the successor. The outgoing tax collector and his sureties on his bond shall, upon his delivery to his successor of such books and papers in his office as relate to the uncollected taxes, be discharged of liability, except for defaults existing prior to that time." Code Section 92-8002 states the following: "Fee for issuing tax executions.-Tax collectors shall be allowed a fee of 50 cents for issuing tax executions; but no tax collector, sheriff, or constable shall receive costs on said executions, unless the same shall be collected from the defendant."
PUBLIC REVENUE-Tax Receiver,s-Co,mmissions (Unofficial) A Tax Receiver is entitled to commissions on net digest only and upon production of Revenue Commissioner's receipt therefor, specifying commissions to which the Receiver is entitled.
January 14, 1948 Honorable Leonard Farkas County Attorney
This is to acknowledge receipt of your letter of January 6, 1948 addressed to the Attorney General, which has been referred to me due to my assignment to the State Department of Revenue, in which you ask an opinion on the following questions:
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"1. Is the Tax Receiver entitled to commissions on his digest irrespective of the amount collected?
2. Is his commission due and payable immediately upon completion of the digest, or are they due and payable as the taxes are collected?"
Under the law the Attorney General can only render official opinions to the Governor and the heads of the various :State Departments; however, we are pleased to be of any help to you that we can in an unofficial capacity. Therefore, anything that I may say in reply to your request is to be considered unofficial and purely as information, and not binding upon anyone in any manner whatsoever.
The same questions raised by you have also been raised by Honorable R. L. Barnes, Tax Receiver of Dougherty County, in a letter to Honorable B. E. Thrasher, Chief Clerk of the Property and License Tax Unit of the State Department of Revenue.
I assume that your ques'.ions involve only net digests, and in this letter, unless otherwise designated, all reference to digests is to be considered to mean net digests.
Section 92-5301 of the Annotated Pocket Supplement of the 1933 Code, as amended by Acts 1937-38, pp. 297-299, provides:
"Commissions enumerated.-The commissions to be allowed to each receiver and collector of State and county taxes shall be as follows, viz.:
On all net digests up to and including $3,000........................6 per cent Over $ 3,000 and not exceeding $ 7,000 ..............................5 per cent Over $ 7,000 and not exceeding $12,000 ............................. .4 per cent Over $12,000 and not exceeding $18,000 ..............................3 per cent Over $18,000 and not exceeding $26,000 ..............................2Ih per cent Over $26,000 and not exceeding $38,000 ..............................2 per cent Over $38,000 and not exceeding $54,000 ..............................1%, per cent Over $54,000 ................................................................................ 1Ih per cent" You will note that the commissions allowed under the above Code section are for services of the Tax Receiver rendered on "net digests". Section 92-5302 of the Annotated 1933 Code provides:
"Default and insolvent list.-In arriving at the net amount of the digest, the default list shall be deducted for the receivers, and the insolvent list for the collectors."
The duties of the Tax Receivers are enumerated under Code Section 92-4611 of the Annotated 1933 Code. His duties in regard to the net digests are completed when he makes out and perfects three net digests in writing and figures plainly, legibly, and neatly, and properly deposits them, and they are approved by the State Revenue Commissioner. After this approval the net digests cannot be changed by the Tax Receiver in any manner or form whatsoever.
On January 17, 1938, an Act (Ga. L. 1937-38, pp. 297-299) was approved, which reads as follows:
"An Act to amend section 92-5301 of the Code of Georgia of 1933, by changing the classes and amounts of commissions allowed to tax-receivers and tax-collectors of State and county taxes; to provide for the fees to be allowed tax-collectors on delinquent taxes; to provide for the time of payment of commissions to tax-receivers; to provide for the effective date of this Act; to repeal all laws in conflict herewith; and for other purposes.
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"Section 1. Be it enacted by the General Assembly of Georgia, and it is hereby enacted by authority of the same, that section 92-5301 of the Code of Georgia of 1933, providing for and prescribing the fees or commissions of taxreceivers and tax-collE:ctors of State and county taxes, be amended by striking in its entirety the schedule of commissions therein, and by inserting in lieu thereof the following schedule, to wit:
"On all net digests up to and including $3,000.00 ................................ 6 o/o Over $ 3,000.00 and not exceeding $ 7,000.00 ....................................5 % Over $ 7,000.00 and not exceeding $12,000.00 ....................................4 o/o Over $12,000.00 and not exceeding $18,000.00 ....................................3 o/o Over $18,000.00 and not exceeding $26,000.00 ....................................2%% Over $26,000.00 and not exceeding $38,000.00 ....................................2 % Over $38,000.00 and not exceeding $54,000.00 ....................................1%% Over $54,000.00 ..........................................................................................11h o/o so that said section 92-5301, when amended, shall read as follows, to wit: "Section 92-5301.-Commissions enumerated.-The commissions to be allowed to each receiver and collector of State and county taxes shall be as follows, viz.: "On all net digests up to and including $3,000.00 .................................6 % Over $ 3,000.00 and not exceeding $ 7,000.00 ....................................5 % Over $ 7,000.00 and not exceeding $12,000.00 ....................................4 % Over $12,000.00 and not exceeding $18,000.00 ....................................3 % Over $18,000.00 and not exceeding $26,000.00 ....................................2%% Over $26,000.00 and not exceeding $38,000.00 ....................................2 % Over $38,000.00 and not exceeding $54,000.00 ....................................1%% Over $54,000.00 ..........................................................................................1% o/o "Section 2. Be it further enacted by the authority aforesaid, that this revised and amended schedule of commissions shall apply to tax net digests for the years beginning January 1, 1938. "Section 3. Be it further enacted by the authority aforesaid that as far as the tax-collectors are concerned the above rates and schedules shall apply upon the 1st 90% of the ad valorem net digests collected by the tax collector. On all taxes collected in excess of 90% of the total of taxes due according to the tax net digest, prior to the year 1938, the tax-collectors shall be paid for collecting the State's part of such delinquent taxes 10% of all such collections, irrespective of the above and foregoing schedules and rates.
"Section 4. Be it further enacted by the authority aforesaid that it shall be the duty of the tax collector to pay to the tax-receiver his commissions due by the State and by the county, upon the production of the Comptroller-General's receipt for his net digest, with a specification therein of the amount of commissions to which he is entitled, and not otherwise; and to produce said receiver's receipts, with his receipts thereon, to the Comptroller-General, before he shall be allowed credits for such commissions.
"Section 5. Be it further enacted by the authority aforesaid, that all laws, and parts of laws in conflict herewith be and the same are hereby repealed.
"Approved January 17, 1938."
The above Act, in addition to changing the rate of commissions for Tax Receivers and Collectors, provided under Section 4 the time when such payments to Tax Receivers should be made. In the caption of this Act it is stated:
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"To provide for the time of payment of commissions to Tax Receivers." Section 4 of the above 1938 Act is codified under Code Section 92-5305 of the Pocket Supplement of the 1933 Annotated Code. What does Section 4 of the Act (Code 92-5305) provide? First, it states that it is the duty of the Tax Collector to pay to the Tax Receiver his commissions due on net digests by the State and county; second, when?, upon the production of the Revenue Commissioner's receipt for his net digest, with a specification therein of the amount of commissions to which he is entitled. The meaning of Section 4 (Code 92-5305) is simple, plain and clear. The language of this statute consists of common, ordinary words. There is nothing therein to show that any unusual meaning is to be attached to the terms employed. A Legislative Body is presumed to mean something by the passage of an Act, and an Act should not be so construed as to render it meaningless. It is well to pause here and reflect as to why and how Section 4 of the 1938 Act (Code 92-5305) came into existence. It appears that prior to the passage of this Act there was occasional confusion as to when a Tax Receiver should receive the commissions due him for work done on the completed and approved net digest, and Honorable B. E. Thrasher, Sr., Chief Clerk of the Property and License Tax Unit of the State Department of Revenue, who prior to the creation of the State Revenue Department as now constituted was for a long number of years in charge of this particular work under the Comptroller General's office, observed that it would help to eliminate the occasional confusion above stated, if a law was enacted by the General Assembly providing when Tax Receivers should be paid their commissions for preparing net digests. Mr. Thrasher prepared the provisions contained in Section 4, now codified under (Section 92-5305), and caused them to be made a part of the Act of 1938 (Ga. L. 1937-38, pp. 297, 299), which passed the General Assembly and was approved on January 17, 1938. After the passage of this law, the State Revenue Department promulgated the attached "Receipt for Digest and Commission Voucher" under its regulatory powers in order to effectually carry out the provisions of Section 4 (Code Section 92-5305) .
You will also note that the State Revenue Department, under its regulatory powers, promulgated the regulation reading as follows:
"The Tax Collector or Tax Commissioner will pay this voucher from the first money collected on the Digest it covers and will forward same to Department of Revenue with first report for credit to his account." which is printed on the bottom of the attached "Receipt for Digest and Commission Voucher".
I have carefully considered the case of Clements vs. Peerless w,oolen Mills, 197 Ga. 296, referred to in your letter, and I am unable to reach the conclusion that it is in point, since it does not construe Section 4 of the 1938 Act (Section 92-5305 of the Pocket Supplement of the Annotated Code of Georgia). It does not involve the question of a net digest. It does deal with a n.o.d. (not on digest) item. In this connection it must be kept in mind that the commissions specified in Code Section 92-5301 for Tax Receiver is on "net digests" only and does not cover n.o.d. (not on digest) items.
Although you did not cite it, I am not unmindful of the decision in the case of Salmon vs. Floyd County, 24 Ga. App. 796; however, this case was
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decided by the Court of Appeals on March 20, 1920, prior to the Act of 1938, which was passed for the express purpose of eliminating the effect of this decision.
Since the provisions of Section 4 of the 1938 Act (Section 92-5305) are clear in their meaning, I am compelled to reach the personal conclusion that a Tax Receiver under its provisions is entitled to receive from the Tax Collector his commissions as provided by Code Section 92-5301 on "net digests" upon the presentation to the Tax Collector or Tax Commissioner the "Receipt for Digest and Commission Voucher", above referred to, from the first money collected on the net digests it covers.
PUBLIC REVENUE-Tax Sales The Redemption After Tax Sale Law of 1937 did not by implication repeal the 1935 Act regarding redemption of property from municipalities.
May 7, 1948. Mr. W. V. Rigsby Attorney at Law
I am pleased to acknowledge your letter of March 18, 1948 in which you requested my opinion on the constitutionality of the redemption after tax sale law contained in the Acts of 1937, page 491. I regret the delay in answering your letter and assure you it was unavoidable.
Your statement that I cannot render official opinions to anyone except. the Governor and the heads of the various State departments is correct, and any information contained in this letter is strictly of a personal nature and not binding on anyone.
I have not been called upon by the Revenue Commissioner to write an official opinion on the question you have propounded. If I had, I assure you I would be delighted to send you a copy. There is no charge whatsoever for copies of official opinions.
It is noted that in the caption and in the body, the Redemption After Tax Sale Act, 1937 Georgia Laws, page 491, expressly repealed Section 92-4402 of the Code of 1933 without referring to Section 92-4402 which was codified from the Acts of 1935, Georgia Laws 1935, page 466.
The 1935 Act did not purport to amend the 1933 Act but was an independent Act regarding redemption of property from municipalities.
In view of the above, the question narrows to: Did not the 1937 Legislature intend to also repeal the 1935 Act? Bearing in mind that as a general rule all Acts are presumed to be constitutional until declared otherwise by the Courts of this State, I am of the opinion that it would not be sound to take the position the 1937 Act repealed the 1935 Act by implication. However, I want t.fi repeat that this is only my personal view.
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PUBLIC SAFETY-Department of Pub:lic Safety (Unofficial) Violation of the 55-mile speed limit constitutes a misdemeanor and is punishable by fine andjor imprisonment.
January 6, 1948
Mr. Edw. H. Reynolds
Attorney at Law
This is to acknowledge receipt of your letter of December 29, 1947, in which
you request information in regard to the speed limits of automobiles in Georgia,
penalty for violation of same, and as to acceptance of cash bonds, to whom the
same are payable and what officer the money is paid over to.
In reply, I wish to advise that the Attorney General of Georgia is not
authorized under the law to give official opinions or information upon any
matters except when directed by the Governor or the heads of the several State
Departments and then only upon State matters. Therefore, you will understand
that the information given herein is strictly personal and unofficial.
The speed limit of Georgia for automobiles is 55 miles per hour. Violat!.ons
are punishable as for a misdemeanor, which is $1,000.00 fine, six months in
jail, and twelve months in a public works camp of this State, any part of
which or all in the discretion of the Court may be imposed.
Officers are authorized to accept cash bonds for such amount as they may
deem sufficient to guarantee the presence of the offenders at the court for trial.
In the event a cash bond is accepted the same is payable to the Governor and
upon failure of the offender to appear for trial same may be forfeited in like
manner as a written bond, and if bond is forfeited it is payable in the same
manner as if a written bond had been taken.
You will find all the laws pertaining to motor vehicles in Title 68 of the
Annotated Code of Georgia of 1933 and cumulative pocket part thereof.
I wish to advise further that the Department of Public Safety of Georgia
is authorized to make such rules and regulations respecting traffic, etc., as they
may deem reasonable and just.
PUBLIC SAFETY-Butane Gas (Unofficial) No specific regulations exist relating to the sale or distribution of butane or propane gas.
Mr. F. W. McKenney, Executive Secretary Trailercoach Dealers National Association
January 8, 1948
This will acknowledge receipt of your letter of January 2 in which you inquire as to laws and regulations of the State of Georgia governing the manufacture and sale of new bedding or the fumigation and or sale of used bedding, and also as to laws and regulations pertaining to the sale and distribution vf butane or propane gases covering their use or installation in trailercoaches occupied as residences.
The Attorney General of Georgia is not authorized under the law to give official opinions or information respecting matters except when directed by the Governor or the heads of the several State Departments, therefore, the information given herein is strictly personal and unofficial.
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Replying to your first question, I beg to advise that you will find the laws pertaining thereto in Part III, Chapter 88-13 in the cumulative pocket part of the Annotated Code of Georgia of 1933. There are several sections in this chapter referring thereto, and they were codified from the Acts of the General Assembly of Georgia of 1937, pages 719-724 inclusive.
In regard to the second question, you are advised that Georgia has no specific rules and regulations pertaining to the sale, distribution, etc. of butane or propane gases used for heating, etc. in residences or trailercoaches. In the event the installation or use of such gases complies with the requirements of the Underwriters Association as to safety, etc., same would be satisfactory to the State of Georgia.
PUBLIC SAFETY-Butane Gas (Unofficial) The storage of butane gas within city limits is not prohibited.
January 27, 1948 Honorable C. H. Watkins, Clerk Town of Ball Ground
Reference is made to your recent inquiry regarding the existence of a law in this State regulating the storage of butane gas within the city limits.
Please be advised that the Attorney General is precluded by law from rendering official opinions upon legal matters to persons other than the Governor and the heads of the several State Departments. In view of this fact, it is therefore necessary that I advise you that any opinion expressed herein is entirely unofficial, and, as such, is not binding upon any person or upon this office.
At the present time, there is no law in Georgia regulating the storage of butane gas within city limits. It is my understanding that from time to time attempts have been made to have such laws passed but as yet no such bill presented has been successfully passed into law.
There being no State law upon the matter, it would seem to be quite properly within the prerogative of the city's legislative authority of a municipal corporation to pass such an ordinance regulating the storage of butane gas as would be consistent with its charter and with other statutes of the State and Federal Government.
PUBLIC SAFETY-Drivers Licenses 1. Military personnel who drive only on military reservation need not have a State driver's license. 2. Military personnel operating government or private vehicles on military business off the reservation need not have State driver's license. 3. Military personnel operating a private vehicle on private business on public highways must have a State driver's license.
February 4, 1948 Major J. Q. Davis, Director Department of Public Safety
I have received your request for my opm10n concerning the validity of a motor vehicle operator's license issued by the United States Army when used by military personnel on and off a military reservation.
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Code Section 92A-402 provides as follows: "The following persons are exempt from the prov1s10ns of this chapter: "Any person operating a motor vehicle in the service of the Army, Navy, or Marine Corps of the United States." Also, Code Section 92A-435 provides: "All current operators drivers' licenses now held by or hereafter issued to citizens of this State now serving in the armed forces of the United States, and all operators drivers' licenses held by or hereafter issued to citizens of this State current at the time such citizen enters the service of the armed forces of the United States are hereby extended for the duration of the present wars: Provided, that such extended license shall terminate 90 days after the discharge from the armed forces of any holder thereof prior to the end of the present wars." Therefore, it is my opinion that (1) Military personnel operating a private vehicle on private business on the public highways of Georgia must have a State operator's license, regardless of the issuance of a license of the United States Army. (2) Military personnel who operate government vehicles in the service of the armed forces do not have to possess a State operator's license while so engaged either on or off a military reservation. (3) Military personnel operating a privately owned motor vehicle off the military reservation but on directed and authorized military business would not be required to own or possess a State operator's license. (4) Military personnel who drive only on a military reservation are not required to possess a State driver's license.
PUBLIC SAFETY-Department of Public Safety The Department of Public Safety is authorized to fix rules relating to right of way at intersections of highways, etc. outside of municipalities and to erect signs pursuant thereto.
Hon. J. Q. Davis, Director Department of Public Safety
March 4, 1948
I have your letter of February 20th in which you request my opinion as to what action your Department should take to implement Section 3, Paragraph A, of the Driving and Traffic Regulations Law, Ga. Laws 1939, pages 295, 298.
The Section in question states as follows:
"(a) The Department of Public Safety is authorized to fix rules in respect to right-of-way at intersections of said highways or public roads outside of municipalities and to promulgate other reasonable safety rules in respect thereto, and to give notice of same by proper signs erected at or near said intersections. Said signs to be erected and maintained by Highway Dept. Maintenance Dept."
You will note that your Department is "authorized" rather than required to fix the rules in question. It is my suggestion that you formulate a general set of rules covering right-of-ways at intersections, and keep them on file at
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your office and give them such circulation as you deem necessary. Inasmuch as your Department has erected stop and speed signs, (see my opinion of May 28th, 1947 addressed to you), it would seem necessary to formulate rules to cover all situations wherein signs have been erected.
A general set of rules should suffice but in my opinion it is within your authority to make special rules for special situations.
I do not believe it would be proper for me to formulate such rules for you, but I will be pleased to review any rules you may enact, and give you my opinion as to their legal effect, phraseology, etc.
PUBLIC SAFETY-Department of Public Safety (Unofficial) 1. A sheriff is entitled to a fee for an arrest for traffic violation only when the arrest is made by him. 2. Provisions as to bail in traffic cases.
April 30, 1948
Mrs. Emily B. Varnedoe Ordinary, Mcintosh County
I have received your letter of April 22, 1948, in which you request my opinion regarding certain points relative to the ordinary's court handling traffic cases in your County.
As you know, the Attorney General is precluded by law from rendering official opinions upon legal matters to persons other than the Governor and the heads of the several State Departments. In view of this fact, it is therefore necessary that I advise you that any opinion expressed herein is entirely unofficial, and, as such, is not binding upon any person or upon this office.
You state in your letter that your County does not have a city court; therefore, pursuant to the Georgia laws of 1937-1938, Page 558, you, as ordinary of said County, have jurisdiction to issue warrants, try cases, and impose sentences in all misdemeanor cases arising under the Georgia State Patrol Act of 1937 and other traffic laws of this State; provided the defendant waives a jury trial.
The Attorney General has held in numerous decisions that a sheriff is not entitled to a fee for an arrest when the arrest is made by a State patrolman, but the sheriff is entitled to a fee for an arrest when the arrest is made by him.
In connection wi:h the sheriff's duties with regard to bail in traffic cases, I am enclosing an excerpt from an unofficial opinion of Attorney General Ellis Arnall written to the Honorable J. J. Elliott, Captain, Georgia State Patrol dated February 4, 1948.
Also, with respect to your question as to fees of the sheriff in these cases, I am enclosing a copy of an unofficial opinion of Attorney General T. Grady Head, written to the Hpnorable Earle McDaniels, Ordinary, Catoosa County, Ringgold, Georgia under date of March 19, 1945, and also a copy of a letter regarding ordinaries' fees which was addressed to Honorable Margaret Brantley, Ordinary, Hanco*ck County, Sparta, Georgia, dated September 25, 1946, and signed by R. G. Jackson, Attorney.
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EXCERPT Unofficial opinion addressed to Honorable J. J. Elliott
Captain, Georgia State Patrol signed by Ellis G. Arnall dated February 4, 1941
"The only prov1s10n with reference to bail contained in the act conferring jurisdiction upon courts of ordinary, etc., over highway patrol and other traffic law violation cases is found in Sections 10 which relates to appeals and provides:
"In case of a conviction of any defendant in the courts named in this act he shall have the right of appeal to the superior court. The appeal shall be entered as appeals are now entered from the court of ordinary to the superior court provided that the defendant shall be entitled to bail and shall be released from custody upon giving bond as is provided for appearances in criminal cases in the courts of this State, and such bonds shall have the conditions as now appear in appearance bonds in criminal cases. The hearing in the superior court shall be a de novo investigation and all proceedings shall be as is now provided by law.'
"This act, however, should be construed in connection with the general law as set out in Section 27-902 of the Code and which provides:
"'The sheriffs and constables shall accept bail in such reasonable amount as may be just and fair for any person or persons charged with the offense of a misdemeanor, provided that the sureties tendered and offered on said bond are approved by a sheriff of any county.'
"So while it is true that the act above referred to does not specifically provide for the taking of an appearance bond (but merely for the taking of a bond in cases which are to be appealed) I am of the opinion that acting under Section 27-902 the sheriff or constable could accept bail in cases involving traffic violations which are made returnable to the court of ordinary.'~
PUBLIC SAFETY-Department of Public Safety 1. The Building Safety Counsel has no right or duty to inspect: (a) properties of the Federal Government such as military reservations; or (b) properties, such as war housing projects, owned by the Government but leased to private persons for non-governmental uses. 2. The Building Safety Counsel has the right and duty to inspect properties owned by municipal corporations but constructed in conjunction with the Federal Government under Federal legislation.
June 28, 1948 Honorable James Frame, Director and Secretary Building Safety Council
I have your letter of June 28, 1948, in which you request my opmwn as to the rights and duties of the Building Safety Council to inspect and certify buildings owned by the Federal government or by municipal corporations under Federal legislation.
You have asked for specific information as to three classes of property, as follows:
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"(a) Properties such as military reservations, post offices, etc., which are owned by the Federal government;
"(b) Properties owned by the Federal Government but leased to private persons for private non-government uses;
"(c) Properties owned by municipal corporations such as the several Housing Authorities, but constructed in conjunction with the Federal government under Federal legislation."
As to (a) above, it is my opinion that the Council is clearly not required to inspect and certify such properties. Article I, Section 8, Clause 17, of the United States Constitution, (Georgia Code Annotated, Section 1-125, paragraph 17), provides as follows:
"The Congress shall have power ... to exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of F'orts, Magazines, Arsenals, Dockyards, and other needful Buildings;"
The consent of the State of Georgia was given in accordance with the above Section of the United States Constitution by the General Assembly in 1906 (see Georgia Code Annotated, Sections 15-301, 15-302 and 15-303), and therefore the Council, as an agency of the State, does not have jurisdiction over such properties as are included in Paragraph (a) of your inquiry.
As to Paragraph (b) of your inquiry covering Federally owned properties leased to private persons for non-governmental uses, the determining factor will be the Legislative authority under which the Federal government has constructed and leased such property. Dwellings constructed under the Lanham Act, (42 U.S.C.A. Paragraph 1521), are specifically excluded from the operation of state building regulations. These properties are War Housing Projects, etc. It has been decided by various courts that the construction of such dwellings under the Lanham Act was a proper use of the war powers of the Federal government and that the exemption from State regulations of such dwellings is legal. Oklahoma City vs. Sanders, 94 Fed. (2), 323. United State~ vs. City of Chester, 144 Fed. (2d), 415.
As to Paragraph (c) of your inquiry covering properties owned by municipal corporations under the Housing Authorities Law (Georgia Code Annotated, Title 99, Chapter 11), such properties are specifically made subject to State building laws by Georgia Code Annotated, Section 99-1120, which is as follows:
"All housing projects of an authority shall be subject to the planning, zoning, sanitary and building laws, ordinances and regulations applicable to the locality in which the housing project is situated."
However, I wish to point out that the Building Safety Law authorizes waiver of the fees for certificates of occupancy and temporary occupancy permits covering buildings "owned by state, counties, cities and school boards". The Housing Authorities Law declares that the property of an authority is "public property used for essential public and governmental purposes and not for purposes of private or corporate benefit and income, and such property shall be exempt from all taxes and special assessments of the city, the county, the State or any political subdivision thereof".
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It is therefore my opm10n that the Building Safety Council may legally waive the fees for providing the various certificates covering properties of the various Housing Authorities.
PUBLIC SAFETY-Departmen.t of Public Safety Members of the Department of Public Safety are entitled, when away from their district or division, to expenses of meals and lodging, in addition to their regular per diem.
August 19, 1948 Honorable B. E. Thrasher, Jr. State Auditor
I have your letter of August 17 in which you request my opinion on the interpretation of the following Code Section:
Georgia Code Annotated, Section 92A-233: "All members of the uniform division of the Department of Public Safety shall be paid a subsistence allowance of not less than $2.50 per diem, and when any officer or trooper is on duty away from his district or division he shall be allowed his proper expense for meals and lodging." Your question is "Does the above provision mean that a trooper shall receive $2.50 per diem and in addition actual expense for meals and lodging, or does it mean that in lieu of $2.50 per diem that he is to get actual expenses or proper expenses for meals and lodging so as to cover any expense above the $2.50 per diem.?" Some light may be thrown upon the intention of the Legislature in enacting the above quoted Section by an examination of the rubric of the Act from which the Section was codified. The rubric reads in part as follows: "An Act ... to provide a subsistence allowance of not less than $2.50 per diem and actual expenses for meals and lodging while on duty away from district or division ..." In both the body and the rubric of the Act the clause providing for expense payments to officers and troopers while away from their posts follows directly upon the clause providing for the payment of the fixed per diem. In neither the rubric nor the body are there any words which indicate that the expenses to be received are "in lieu of" or "instead of" the fixed per diem, nor are the paragraphs so punctuated as to indicate such an intention. In the absence of such an expression by the Legislature, I cannot supply it by reading into the statute the necessary words. It is therefore my opinion that the word "and" is used in its conjunctive form and that officers and troopers should receive the $2.50 per diem and in addition their actual expenses for meals and lodging when on duty away from the district or division to which they are assigned.
PUBLIC SAFETY-Department of Public Safety (Unofficial) No minimum fine is fixed for first-offense traffic violations.
Mr. P. Adams
November 29, 1948
This will acknowledge receipt of your letter of recent date in which you
ask if there is a minimum fine in Georgia for first offenders violating the
speed law.
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Code Section 68-301 deals with this subject, and fixes the limit at 55 mile., per hour. Code Section 68-9908 makes the offense a misdemeanor. A misdflmeanor in this State is punishable by sentence of 12 months in public works :and 6 months in common county jail and $1000 fine; the judge may impose a fine and the sentence of any one or of all three, or any part thereof. There is no minimum fine for first offenders in this State. It seems that the punishment is in the discretion of the Court so long as the Court stays within the :above mentioned penalties.
Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. However, it is a pleasure for me to refer you to the provisions of law applicable to your question as a matter of information.
PUBLIC SAFETY-Firearms (Unofficial) Refers to Code Sections relating to sale, use and possession and permits for pistols, revolvers and other firearms.
April 30, 1948 Mr. Arnold Rayne United States Revolver Association
Your letter of recent date addressed to the Department of State Police has been referred to this Department by Major Elbert Forester of the Georgia State Patrol.
In your letter you requested information as to the Georgia State Laws in Tegard to the sale, use, possession of and permits for pistols, revolvers arid other firearms.
Please be advised that the Attorney General of Georgia is prohibited by law from rendering official opinions or advice to anyone except the Governor and the heads of the various State Departments; however, it is a pleasure to furnish you the requested information in a strictly personal and unofficial manner.
I am enclosing herewith a copy of an unofficial opinion rendered on March 28th, 1947 to Klein's Sporting Goods, which quotes in full the Georgia Law pertaining to your request as cited in the 1933 Georgia Code, Annotated Sections 92-2009, 26-5103, 26-5104 and 26-5105.
PUBLIC SAFETY-Firearms (Unofficial) The use of B.B. air guns is not prohibited nor is there any regulation of sale or supervision of use.
November 10, 1948 Dr. John D. Wilsey
This will acknowledge receipt of your letter of October 29th in which you :ask the following question:
"Is there any statute in your State pertaining to the prohibition of the use. of the B.B. gun or the regulation of its sale and the supervision of its use'?"
Under the law of Georgia, the Attorney General is prohibited from giving
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his opinions except to the Governor and the heads of the various State departments, and then only on matters in which the interest of the State is involved. Therefore, anything I may say in reply to your letter is to be considered only as information, and is not to be considered as official or binding on anyone whatsoever.
I do not know of any statute of the State of Georgia regulating or supervising the possession, use or sale of what is commonly known as a B.B. air gun.
I am unable to advise you if there is any municipal ordinance covering the subject matter of your question. To obtain this information, it would be necessary to consult the ordinances of the various municipalities of the State, which are not available in any central location, but are available at the office of the Clerk of each municipality in the State.
PUBLIC SAFETY-Motor Vehicle Safety Responsibility Act A judgment under the Motor Vehicle Responsibility Act, if listed as a debt, is discharged in bankruptcy proceeding, and suspension of license for failure to pay same becomes inoperative.
January 29, 1948
Major J. Q. Davis, Director Department of Public Safety
This letter will acknowledge your recent inquiry in which you request my opinion on the following question:
"What effect does bankruptcy by the licensee have on the suspension of a license by this Department, when said license has been suspended under the provisions of Act 332, Motor Vehicle Safety Responsibility, Georgia Laws of 1945?"
Code Section 92A-602 provides as follows: "The Director of Public Safety is hereby authorized to cancel or suspend the driver's license of any person who fails to pay a final judgment rendered by a court of competent jurisdiction of this State within 30 days after the judgment has become final where such judgment is based upon any cause of action arising out of the operation of a motor vehicle upon the highways or streets of this State." Code Section 92A-604 provides as follows: "The Director of Public Safety shall suspend the driver's license of any person who shall not satisfy such final judgment within 30 days, and said license shall remain suspended until one of the following conditions is complied with by said person: "(a) Securing a policy of liability insurance from a corporation authorized to transact business in this State which will protect in the future persons from injury occasioned by the negligence of the insured in an amount of $5,000 or two persons in an amount of $10,000, provided each individual recovery shall be limited to $5,000; and for property damages in an amount of $1,000. The insurance company issuing the policy is required to adopt all the provisions of this Chapter as a part of the policy and must agree to promptly pay any and all final judgments in the above amounts which may be rendered against the insured for accidents, injuries, or damages occurring on the highways or streets of this State by virtue of a motor vehicle operated by the insured. All insurance
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companies issuing policies under this Chapter shall be subject to the jurisdiction of the Insurance Commissioner and the Attorney General.
"(b) Satisfaction of said judgment rendered against him. (c) Entering into an agreement with the injured party in writing, where said injured party expressly releases him from compliance with the terms of this Chapter: Provided, however, that where said injured party is represented by an attorney, said attorney must also sign the release." Obviously, from the latter code section, it can be seen that no provision is included in the statute to relieve a person from a suspended license by a discharge in bankruptcy. So it will be necessary to determine the effect and operation of a discharge in bankruptcy to accurately answer the question propounded. The bankruptcy law is a part of the supreme law of the land and supersedes principles of general jurisprudence in conflict therewith. In Corpus Juris Secundum, Volume 8, Page 419, it is stated that the bankruptcy law "is paramount to any state statute and suspends state laws in conflict therewith to the extent of the conflict." And in Corpus Juris Secundum, Volume 8, Page 1490, "A discharge in bankruptcy is binding on all the world.... Once granted and not set aside a discharge in bankruptcy is conclusive against any future liability of the bankrupt with respect to the debts ... and a state court must give full faith and credit to such a discharge." It is therefore my opinion that if a person files a petition in bankruptcy and lists the judgment obtained against him in his schedule of indebtednesses and subsequently obtains a discharge in bankruptcy that the provisions of the Motor Vehicle Safety Responsibility Act are no longer effective against him for that particular judgment.
PUBLIC SAFETY-Motor Vehicle Safety Reaponaibility Ad (Unofficial) A driver who fails to pay within 30 days a final judgment based on an action arising out of his operation of a motor vehicle upon the highways shall have his license suspended.
March 3, 1948 Mr. Geo. T. Dickson Dixie Motor Club
I have your letter of February 21, in which you request a brief summary of the Georgia Safety Responsibility Law covering unsatisfied judgments rendered as a result of automobile accidents.
Georgia Code Annotated, Section 92A-601, et seq., provides that the Director of Public Safety shall cancel the driver's license of any person who fails to pay the final judgment rendered by a court of competent jurisdiction of this State within thirty days after the judgment has become final where such judgment is based upon any cause of action arising out of the operation of a motor vehicle upon the highways or streets of this State.
The license shall remain suspended until one of the following conditions is complied with by said person:
(a) Securing a policy of liability insurance which will protect persons
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injured in the future. The amount of the policy must be $5,000, or for two persons, $10,000.
(b) Satisfaction of the judgment rendered against him. (c) Entering into an agreement with the injured party in writing, wherein the injured party releases him from compliance with the terms of this Chapter. Any person who has been deprived of his license under this Chapter within seven years from the date on which he applies for a driver's license must comply with the Chapter before receiving a license.
PUBLIC SAFETY-Safety Appliances (Unofficial) The use of safety chains on house and pole trailers is not required.
January 12, 1948 Equaflow Cooler Corporation
Replying to your letter of January 6, 1948, in which you inquire if there is any law in the State of Georgia covering the use of safety chains on house and pole trailers, I beg to advise that I know of no law covering this matter in the State.
PUBLIC SAFETY-Safety Appliances (Unofficial) Electric illuminated directional signals are not the subject of specific laws but are permitted where not detrimental to other drivers.
April 23, 1948 Advanced Manufacturing, Inc.
Your letter of March 31, 1948 addressed to the Honorable Ben W. Fortson, Jr., Secretary of State relative to electric illuminated directional signals, has been referred to me for further attention and reply.
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the heads of the various State departments; therefore, this information is to be considered strictly of a personal nature and is not binding on anyone.
Georgia does not have any specific laws on this subject. However, the Department of Public Safety informs me that the devices of this type are considered by them to be in the category as general automobile accessories, and as long as such devices are not detrimental to the other drivers on the road they are permitted.
PUBLIC SAFETY-Safety Appliances (Unofficial) The use of static drag chains on gasoline and kerosene trucks is not required.
August 6, 1948 Mr. J. B. Osborn, Jr. Division Engineer American Oil Company
This will acknowledge receipt of your letter of August 4, 1948 addressed to Honorable Eugene Cook with reference to the Georgia law requiring the use of static drag chains or other type of grounding device or similar equipment
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on tank trucks which haul gasoline and kerosene, which, in the absence of the Attorney General, has been referred to me for reply.
We have no statutory provision covering the subject matter of your letter and I have checked with the Public Service Commission to ascertain whether or not they have promulgated any rule or regulation requiring the use of static drag chains, etc., and they advise me that they have no such rule or regulation but that the Interstate Commerce Commission requires a chain.
PUBLIC SAFETY-Spotlights (Unofficial) No specific reference is made in the law to spotlights, but the creation of a blinding glare from headlights is prohibited.
February 5, 1948
Arnolt Corporation I beg to acknowledge receipt of your letter of January 27, 1948, in which
you ask for information in regard to spotlights on motor vehicles. Replying thereto I beg to advise that the Attorney General of Georgia is
not authorized to give official information or opinions except when directed by the Governor or the heads of the several State Departments, and then only on State matters. Therefore, the information given herein is strictly unofficial, personal and not binding.
Section 68-316 of the Pocket Part of the Annotated Code of Georgia of 1933 provides in part as follows:
"(a) Every motor vehicle operated on the public streets or highways of this State shall be equipped with two front headlights located near the side extremeties of the front, capable of revealing a person, vehicle or object at least 500 feet ahead in the darkness, and so arranged that at no time will the beam from said lights create a blinding glare or interfere with the vision of the driver of any vehicle approaching within 500 feet of said vehicle; and any auxiliary headlights in front must be extinguished when within 500 feet of any vehicle ahead or any congested traffic area; and shall keep them extinguished until passing the approaching vehicle: Provided, further, that every such motor vehicle shall be equipped also with a rear light, red in color, and visible for at least 200 feet in the darkness in the rear, when said motor vehicle is being operated on a public street or highway, must be lighted one half hour after sunset to one half hour before sunrise and at any otheT time when vision is restricted for any reason less than 500 feet along a public street or highway."
Section 68-317 provides as follows: "(a) All vehicles using the public roads and highways of the State of Georgia at night shall be equipped with fTont and rear reflectors, in addition to the lights requiTed by section 68-316, to serve as a warning signal to drivers of approaching vehicles. "(b) The Department of Public Safety is hereby vested with the authority to determine and specify the type of reflectors to be placed on vehicles; to approve reflectors meeting the minimum requirements; and to make such other reasonable rules and regulations needed for the use of said reflectors. "(c) The fact that no reflectors, or 1eflectors failing to meet the minimum requirements and approval of said Department of Public Safety according to the said rules and regulations of the Department, are on the vehicle, shall be
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considered prima facie evidence of negligence on the part of the owner of such a vehicle.
"(d) The provisions of this law shall become operative and effective 30 days after date of approval."
I am advised by the Department of Public Safety that no further regulations other than provided in the Code have been issued.
RAILROADS-Realty Before parking facilities may be established over railroad properties by private industry, air rights must be secured from both the State and the Railroad.
January 13, 1948 Hon. L. L. Austin, Secretary Atlanta Automobile Association
I am pleased to acknowledge receipt of your letter of January 5th, in which you state that some of the members of your Association are interested in promoting a plan to provide parking facilities over railroad properties in downtown Atlanta. Since the State of Georgia has an interest in these carriers, you desire that we outline the procedure necessary to carry out such a plan.
It would be necessary to have the permission of the State before any of its rights could be leased or otherwise disposed of. The State would have certain air rights over this property. This would likewise apply to the railroads themselves. It seems that it would be necessary to secure the approval or authority of the Georgia Legislature before the State would be in a position to make such an agreement. It would also be necessary of course, to secure the permission of the interested railroads.
Under the Constitution and laws of this State, the Attorney General is prohibited from giving official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. You will therefore understand that this letter is not to be considered as an official opinion, but is simply being sent as a matter of information.
ROADS, BRIDGES AND FERRIES-State Highway Department (Unofficial) Actions arising out of the use of State Highways by non-residents must be brought in the county where the cause of action originated, unless plaintiff is a resident of Georgia, in which case it is brought in the county of his residence.
April 5, 1948 Mr. Marion Meredith Attorney at Law
Replying to your letter of March 26th, the section to which you refer is found in Chapter 68-8, Pocket Part Annotated Code of Georgia of 1933 as amended. Section 68~8'03, as enacted by the General Assembly in 1947, provides that the venue of any cause of action brought under the Chapter, relating to the use of the highways of this State by nonresident motorists shall be brought in
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the county in which the cause of action originated, or in the county of the residence of the plaintiff if plaintiff is a resident of Georgia; if plaintiff is a nonresident the suit must be brought in the county in which the cause of action originated. The section continued:
" ... and the courts in said counties having jurisdiction of tort and criminal actions shall have jurisdiction of all such nonresident users in actions arising under this Chapter."
If it is desired that suit be filed in Georgia, therefore, under these provisions of the Code, suit by a non-resident plaintiff against a non-resident defendant would lie only in the county in which the accident occurred; and service upon the non-resident defendant would be had in strict compliance with the requirements of the Code.
The Attorney General may not engage in private practice of law, or give his official opinion to private individuals. The information contained in this letter should therefore be regarded as unofficial, and as having no binding effect upon anyone.
ROADS, BRIDGES AND FERRIES-State Highway Departm.ent The provision that contracts for the construction of highways may not be entered into by the State Department within three months of the end of the term of any governor does not apply to the term of a Lieutenant Governor serving as "Acting Governor".
April 20, 1948
Hon. John C. Beasley, Chairman State Highway Department
I am pleased to acknowledge your recent letter in which you request an official opinion on the question of whether Section 95-1619 of the Amended Code applies to the office of Lieutenant Governor. In other words, you desire to know the latest date on which the State Highway Department shall have authority to enter into contracts for the construction of highways during 1948.
Sectien 95-1619 of the Amended Code provides in part as follows: "The Highway Department, or Commission, or Director, shall not have authority to enter into any legal contract for the construction of any highway, or part thereof, during any period of three months next preceding the end of the term of o.ffice of any Governor of this State....." (!Emphasis ours) The above limitation applies to the three months preceding the end of the term of office of the Governor. In order to answer your question, it is necessary to determine whether or not there will be an "end of the term of office of ... Governor" at the expiration of the tenure of office of the present Acting Governor. The answer to this question will be found in the Constitution of Georgia. Article 5, Section 1, Paragraph 1 provides in part as follows: "The executive power shall be vested in a Governor, who shall hold his office during the term of four years, and until his successor shall be chosen and qualified." Paragraph 2 of the above section and article provides: "The first election for Governor, under this Constitution, shall be held on Tuesday after the first Monday in November of 1946, and the Governorelect shall be installed in office at the next session of the General Assembly.
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An election shall take place quadrennially thereafter, on said date, until another date be fixed by the General Assembly. . ."
Article 5, Section 1, Paragraph 7, provides in part: "There shall be a Lieutenant Governor, who shall be elected at the same time, for the same term, and in the same manner as the Governor.... In case of the death, resignation, or disability of the Governor, the Lieutenant Governor shall exercise the executive power and receive the compensation of the Governor until the next general election for members of the General Assembly, at which a successor to the Governor shall be elected for the unexpired term; . . . If the Lieutenant Governor shall become a candidate for the unexpired term of the Governor, he shall thereby resign his office as Lieutenant Gove.rnor effective upon the qualification of the Governor elected for the une,xpired term, and his successor for the unexpired term shall be elected at such election...." (Emphasis supplied) The above provisions of the Constitution clearly state that the Lieutenant Governor only exercises the executive power until a successor to the Governor can be elected to fill the unexpired term. The term of office of Governor is four years. In case of the death, resignation or disability of the Governor, the Lieutenant Governor becomes Acting Governor until the unexpired term of Governor can be filled as required by the Constitution. Although the Lieutenant Governor exercises the executive power and receives the compensation of Governor, he does not actually become Governor during this period of time. During his tenure of office as Acting Governor he may "become a candidate for the unexpired term of the Governor," but if he does, then "he shall thereby resign his office as Lieutenant Governor effective upon the qualification of the Governor elected for the unexpired term". This language of the Constitution makes it clear that the Lieutenant Governor does not serve a term as Governor while exercising the executive powers, but rather that he becomes Acting Governor until a successor can be elected and qualified to fill the unexpired term of Governor. The person who is elected a.nd subsequently qualified to fill the unexpired term is specifically referred to in the Constitution as "Governor", and he is elected for the unexpired term. Thus, this officer has a term of office as Governor, whereas the Lieutenant Governor, although acting as Governor, never did serve a term as Governor. It should also be noted that if the Lieutenant Governor does not desire to become a candidate for the unexpired term of Governor, he is not required to resign his office after having served as Acting Governor, but may continue to serve as Lieutenant Governor until the four year term to which he was elected expires. This provision of the Constitution again demonstrates that the Lieutenant Governor while exercising the executive power due to the incapacity of the Governor is still Lieutenant Governor and not actually Governor serving a term of office. It therefore must follow that when the Lieutenant Governor ceases to act as Governor because a successor has been elected and qualified to fill the unexpired term, we do not legally have a termination "of the term of office of Governor" as referred to in Section 95-1619. Under these circ*mstances, there has been no "end of the term of office of . . . Governor of this State." In view of the above provision of the Constitution, I am of the opinion that Section 95-1619 of the Amended Code does not apply to a Lieutenant Governor who is acting as Governor, and that the Highway Department is not pre-
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eluded from entering into legal contracts for the construction of highways during the last three months of the tenure of office of the Acting Governor. When the Lieutenant Governor ceases to exercise the executive power as provided in the Constitution, this is not "the end of the term of office of ... Governor of this State."
TO THE EDITOR: Inasmuch as some of the press reports and general rumors about the legal
conclusion I reached in the attached official opinion to Honorable John C. Beasley, Chairman of the State Highway Department, appear to be confusion as to the points involved, I felt that you would like to have a copy of the opinion itself.
I ruled only on one point specifically, to-wit: "What is the latest date on which the State Highway Department shall have authority to enter into contracts for the construction of highways during 1948".
I was not called upon to rule on the question of whether the person elected at the General election, November 2nd, to fill the unexpired term, could succeed himself without the intervention of a four year period.
This opinion has also been criticised by some as being political in nature. It is not a political opinion. The State Law Department has not and will not render a political or partisan opinion. Our conclusions of law are subject to attack and we are always prepared to defend them when attacked.
ROADS, BRIDGES AND FERRIES-State Highway Department The State Highway Commission may not meet in any place other than that designated by the statute creating the commission, and in the event of so meeting, are entitled to reimbursem*nt for expenses.
April 27, 1948 Honorable Jud Milam, Chairman State Highway Commission
I have your recent request for an official opinion on the following question: "Does the State Highway Commission have authority to meet and transact business at any place other than that designated by the statute creating the Commission?" You also desire to know whether payment of the expenses of the commissioners who have attended meetings elsewhere than the State Highway Building could be made. The Act of 1943, page 216, creating the State Highway Commission, as codified in Code Section 95-1603, reads as follows: "The members of the State Highway Commission shall meet on the first Monday in each month at the State Highway Building, located at No. 2 Capitol Square, in the City of Atlanta, to transact such business as may properly come before it. The Commission shall not remain in regular session for more than four days in any one month. Called meetings of the Commission may be had at such times as are deemed necessary by the chairman or a majority of the members thereof: Provided, that not more than two called meetings shall be held in any one month and such called meetings shall be limited to two days. (Acts 1943, pp. 216, 219.)"
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In considering the interpretation of the statute, the cardinal rule of inter pretation of statutes, which is that "Statutes must be construed to effectuate the legislative intent". 44 Ga. App. 53 should be followed. In trying to arrive at the true intention of the General Assembly in passage of this Act, it appears that the General Assembly desired and stated specifically that the Highway Commission must meet on the first Monday in each month at the State Highway Building, No. 2 Capitol Square. It appears here that the General Assembly anticipated that many instances would arise where the people would have to appear before the Highway Commission, and thereby the General Assembly has placed all people on notice as to the time and place that the Commission would be in session, in order that such persons who may desire to appear before them could do so. There can be no doubt, under the exact words of the statute, that the Commission is without authority to hold a regular session at any other place than the State Highway Building, and at any other time than on th<} first Monday of each month.
The General Assembly then in the following portion of that section of the statute determined that called meetings of the Commission may be had at such times as are deemed necessary by the Chairman or a majority of the members thereof. It will be noted here that the General Assembly allowed the Chairman of the Commission, or a majority of its members, a discretion as to what time a special or called meeting could be held during any current month. However, the absence of an express authorization of a discretion as to the place where the called meeting could be held is a strong inference that the General Assembly desired that such called meetings be held at the same place provided for a regular session of the Commission.
The following rule, "expressio unius est exclusio alterius", which in English is as follows:
"The expression of one thing is the exclusion of another", will apply in interpreting this statute. The express mention of one thing, person, or place implies the exclusion of another. See> U,nited States v. Barnes, 32 S. Ct. 117.
The General Assembly expressed in the beginning of this section of the act regarding the meetings of the Commission that the place of the meeting would be in the State Highway Building, at No. 2 Capitol Square. The omission of the place where called meetings may be held is merely a modification of the provision determining the time and place for the regular session, and it only modifies this provision with reference to the time or date that a called meeting could be held.
The rule of "ejusdem generis" is also applicable, I think, in determining the meaning of the General Assembly. This rule is as follows:
"In the construction of laws, wills and other instruments, the 'ejusdem generis' rule is, that where general words follow an enumeration of person or thing by words of a particular and specific meaning, such general words are not, to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned." Black's Interpretation of Laws, 141.
In the case of MicGee v. Bennett, 72 Ga. App. 271, the court held: "Where general words follow specific words in a statute, under doctrine of ejusdem generis, the general words should be construed to embrace only objects similar in nature to those specifically enumerated by name." A review of this section of the statute follows that the General Assembly
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specifically named the time and place that regular session of the Highway Commission would be held. The General Assembly held further in general terms and authorized called meetings at the discretion of the Chairman, or a majority of the members; and in omitting any reference to the place at which such called meetings could be held, I am of the opinion that this section regarding called meetings must be construed together with the section controlling the regular meetings and as such, it is properly construed that the place designated for the special meetings is also controlling in the case of called meetings. I am therefore of the opinion that the State Highway Commission cannot hold a .called session or meeting of the Commissioners and transact business in any other place than the State Highway Building, at No. 2 Capitol Square.
You expressed the desire for an opinion as to whether or not payment of the expenses of the Commissioners who attended meetings elsewhere than the State Highway Building could be paid. In line with an opinion rendered by the Honorable L. C. Groves, Assistant Attorney General, on May 14, 1946, and an opinion rendered by the Honorable R. A. McGraw, Assistant Attorney General, on July 17, 1947, in which it was held that members of the State Highway Commission cannot receive additional compensation and expenses for the duties imposed upon them other than the per diem and expenses while attending a regular meeting or a called meeting of the State Highway Commission.
In view of the fact that the regular or called meeting can only be held at No. 2 Capitol Square and that the previous rulings holding that expenses could not be paid for any other purpose than attending these meetings, I am con.strained to the opinion that expenses for any trip to places other than the Highway offices could not be paid, and these only when such trips are to attend a regular or called meeting.
ROADS, BRIDGES AND FERRIES-State Highway De.partment The Act of 1947 providing for reimbursem*nt of counties for expenditures for rights of way for roads not used within three years is not retroactive.
June 30, 1948
Hon. Warren R. Neel, Director State Highway Department
From your letter, and the file on the subject as furnished to me, it appears that Twiggs County is contending for a reimbursem*nt of expenses in the sum of $1,568.85 incurred by the county in 1938 in obtaining rights of way for proposed Project No. 1648A, Jeffersonville-Perry Road, Route No. 127, and which Project was abandoned or the improvement and construction of same neve1 undertaken.
Twiggs County bases its claim on the 1947 legislation on this subject, reading as follows:
"95-1721. (I) The State Highway Department shall be required to reimburse any county of this State the sums actually expended by such county to obtain rights of way for a State highway location which was selected by the State Highway Department and not used for highway purposes within three years from the date such rights of way were acquired and certified by the .county to the State Highway Department. (Acts 1947, p. 1186)"
You ask for an opinion as to whether the Act of 1947 above set forth
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should be given a retroactive application so as to apply to funds expended by the county in 1938 to obtain rights of way for State highway locations.
Section 2-302 of the State Constitution provides as follows: "No bill of attainder, ex post facto law, retroactive law, or law impairing the obligation of contracts, or making irrevocable grant of special privileges or immunities, shall be passed." Section 102-104 of the Code provides: "Laws prescribe only for the future; they cannot impair the obligation of contracts, nor, usually, have a retrospective operation. Laws looking only to th~ remedy or mode of trial may apply to contracts, rights and offenses entered into or accrued or committed prior to their passage; but in every case a reasonable time subsequent to the passage of the statute should be allowed for the citizen to enforce his contract, or protect his right. No bill of attainder or ex post facto law shall be passed." The Supreme Court of our Sta:e in the case Bank of Norman Park vs. Colquitt County, et al., 169 Ga. 534, (1) and (2), held: "1. Laws prescribe for the future, and retroactive statutes are forbidden by the first principles of justice." "2. The settled rule for the construction of statutes is not to give them a retrospective operation, unless the language so imperatively requires." I also call your attention to the rather recent case of Eibel vs. Forrester. et al., 194 Ga. p. 439, where the court refused to give a retrospective interpre. tation to the tax refund act approved January 3, 1938, (Ga. Laws, Ex. Sess., 1937, p. 77). In view of the foregoing authorities, I am of the very definite opinion that the Act of 1947 now under consideration should not be given a retroactive application so as to apply to funds expended by a county in 1938.
ROADS, BRIDGES AND FERRIES-State Highway Department (Unofficial) The statutory limitation on taxes levied by counties for building and maintaining county roads is '\4 of 1 percent.
September 2, 1948 Hon. Chas. H. Arnall, Clerk Coweta County Commissioners
I am pleased to acknowledge your letter of August 28th, in which you state the following:
"Is there any statutory or other limit on the rate of taxation which a county may levy to build and maintain a system of county roads? This county operates under the alternative road law, and I have always limited my levy to 40c on the $100.00 of taxable property."
Since your county operates under the alternative road law, it appears that Section 95-803 of the Code is applicable. This section provides as follows:
"The Commissioners of roads and revenues, or the ordinary, as the case may be, shall levy a tax, additional to any other authorized by law, of not more than four-tenths of one per centum on all of the taxable property in the county, and the funds so raised by said taxation, together with the commutation heretofore provided for, shall be used and expended for the purpose of paying the
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salaries and wages and for working, improving, and repairing the public roads, as set forth in this Chapter."
I also call your attention to the case of Wright, Comptroller General, vs. Alabama Great Southern Railroad Company, 150 Ga. page 140, where our Supreme Court held as follows:
"(2) A county, after having adopted the alternative road law as embodied in the Civil Code (1910), Sections 694 et seq., and after having levied the maximum rate of four dollars per thousand for the maintenance of the public roads of the county, can not levy an additional or special tax for that purpose. See, Central of Georgia Railway Co. v. Meriwether County, 148 Ga. 423.)"
Under the Constitution and laws of this State, the Attorney General is prohibited from giving official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. Even though I cannot give you an official opinion on th0 question propounded, I feel sure that the authorities cited in this letter will give you the information on this subject. Since this matter is purely one concerning the county government, it is my suggestion that you confer with your county attorney, as he is in a position to give you an official opinion in the premises.
ROADS, BRIDGES AND FERRIES-State Highway Departmen.t (Unofficial) Streets of municipalities forming a continuation of or link in a State Aid System are a part of such system for purposes of construction and maintenance.
October 5, 1948'
Honorable Howard Tamplin This will acknowledge receipt of your letter dated September 21, 1948, in
which you state your desire for suggestions and help in the drafting of legislation as regards the construction and maintenance of State highways through cities and towns by the State Highway Department.
I have given this matter careful consideration and study, and am of the opinion that such a law is in existence, although, as a practical and administrative policy it may not be followed in every instance. I refer to Section 95-1726 of the 1933 Code of Georgia, as amended, which reads as follows:
"Streets or parts of streets, lying within the corporate limits of municipalities of this State and forming a continuation of, or a link in, the State-aid system of roads of this State shall be a part of the State-aid system of roads in this State for the purposes of construction and maintenance thereof by the State Highway Board from State highway funds allocated to such Board fo1 the construction and maintenance of roads in the State."
I hope that this fulfills your requirements satisfactorily. If you have any comments or suggestions, please do not hesitate to let me hear further from you.
As the Attorney General is prohibited by law from rendering official opinions to persons other than the Governor and heads of the various State departments, this letter must be considered as merely my personal views on this subject.
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SOCIAL WELFARE-Child Labor 1. Boys of 12 and 13 are permitted to work in wholesale and retail ston:s, etc., provided a certificate is obtained. 2. Children between 14 and 16 years may work in similar places, provided a certificate is obtained. 3. Children 16 to 18 may be employed in the above, and various other types of businesses, but in each instance a certificate must be obtained.
April 23, 1948
Honorable Ben T. Huiet Commissioner of Labor
I have your letter of April 6, in which you request my opinion on the following question:
"Section two (of the Child Labor Regulation, Ga. Laws 1946, page 67, Ga. Code Ann. Title 54-3) lists occupations and positions at which minors under 16 years of age are not permitted to work. If an occupation or position is not listed-for instance, grocery, drug, dry goods and 5 and 10c stores, is it covered under the Child Labor Law assuming that it has not been declared by the Commissioner of Labor to be dangerous to life and limb or injurious to the health and morals of children? If covered, is an employment certificate required for minors 16 and 17 years of age to work in such places?"
Inasmuch as this question in effect conctrns three classes of minors, I will divide my answer in like manner.
The third paragraph of Section 1 of the Act (Ga. Code Ann. Sec. 54-303), states that:
"Boys 12 and 13 years of age may be permitted to work in wholesale and retail stores, provided work permits are procured as provided in Section Eight of this Act and provided there is compliance with the provisions of Sections Three, Five and Six as to hours of work."
I am clearly of the opinion that this paragraph permits such children to work in the class of occupation set out in your question. Incidentally, the paragraph makes reference to "Section Eight" of the Act, but it is quite clear that Section Seven was intended.
Section 7 of the Act (Ga. Code Ann. Sec. 54-310) prohibits the employment of children between the ages of 14 and 16 years of age unless a certificate has been obtained in the manner set out in that Section. It is my opinion that when the proper work certificate has been obtained, children in this age group may work at the occupations set out in your question.
The law does not prohibit the employment of children over 16 years of age in such occupations as you mention in your question. However, Section 7 of the Act (Ga. Code Ann. Sec. 54-310), after setting out the certificate required f:Jr children 14 to 16 years of age, states "a like certificate shall be issued in cases of all children between the ages of 16 and 18.'' The Section continues to describe the certificate necessary for such children to work between the hours of 9:00 P. M. and 6:00 A. M., and it seems probable that it was only intended by tl1e I~gislature to require the certificate for such nocturnal employment. However, the wording of the Act clearly requires the certificate for children 16 to 18 and I cannot set aside so unequivocal a statement in an Act of the Legislature no matter what the body of the Act implies. See: Floyd Co\lnty v. Salmon, 151 Ga. 315, which states:
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"Where the act is plain, unambiguous, and positive, and is not capable of two constructions, the court is not authorized to construe the act according to the supposed intention of the legislature."
It is therefore my opinion that children 16 to 18 years of age must obtain certificates for such employments as you have mentioned in your. question.
SOCIAL WELFARE-County Board (Unoffic.ial) The limitation imposed by the Act of 1938 on taxes to be levied by counties for welfare benefits was removed by the Act of 1946.
Honorable A. H. Gray Attorney at Law
September 9, 1948
Your letter of September 7, 1948, to the Honorable Wm. E. Ireland, Director of the State Department of Public Welfare, has been referred to me for answer inasmuch as it is exclusively concerned with an opinion I recently ren-
dered to Mr. Ireland. The opinion was dated August 13, 1948, and was on the question of whether or not there is any statutory limitation on the rate of taxation which a county may levy for the purpose of providing revenue for welfare benefits.
I note that you have objected both to the designation of the opinion as an official one and to the substance of the opinion itself. I am at all times most eager to receive criticism and comment on my opinions and I welcome discussion on views different from my own. Therefore, I have considered your letter with considerable interest and I should be most pleased to discuss your views with
you in person at any time.
You state in your letter that the Attorney General is prohibited by law from rendering an official opinion to anyone other than the Governor, and that therefore the opinion in question is not an official opinion. I am not in agreement with your view of this question. Mr. Ireland as head of one of the State departments is certainly within the executive department of our government, and I am designated by both the Constitution and statutes as the legal adviser to that department. As such, it is my duty to render legal advice to all members of the department.
In your objections to the substance of my opinion you state that the Act
of 1938 (Ga. Laws 1937-38, p. 292), which authorizes counties to levy a tax for welfare benefits not in excess of three mills per year has not been repealed. Whether or not this Act has been repealed is the heart of the question.
The rubric of the Act of 1938 states "An Act to amend section 92-3701 of the 1933 Code of Georgia . . ." The rubric of the Act of 1946 (Ga. Laws 1946, p. 87), states "An Act to amend Section 92-3701 of the Code of Georgia of
1933 as amended by the Act of 1937-38 ... relating to the purposes for which counties may levy taxaes, by strikin.g said section as amended in its entirety, and substituting in lieu thereof a new section to be known as Section 92-3701, Purposes of County Taxation in General, so as to provide for what purposes
counties may levy and collect taxes; to repeal all conflicting laws; ..." (Emphasis supplied).
Section 1 of the 1946 Act enacts into law this provision striking the old
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Code Section 92-3701, using terms identical with those found in the rubric of the Act.
I consider the above quoted language to be a direct and specific repeal of the old Code Section 92-3701 by the Legislature, and this repealing Act has been so worded as to specifically include the amendment to the Code Section of 1937-38.
It seems quite clear to me that the Legislature has specifically removed the three mill limitation on county taxation for welfare purposes by this Act so that there is not at present any limitation in effect.
Of course the rate of taxation which any county levies is not a matter within the scope of my authority, and certainly I should not be so presumptuous as to attempt to direct what the rate should be. I have simply provided Mr. Ireland with my opinion as to the legal question presented, as I am bound to do under the law.
SOCIAL WELFARE-Ha.ndicapped Persona (Unofficial) No statutory provisions exist for the employment of handicapped persons by the State.
April 9, 194R Ron. Richard W. Case Assistant Attorney General The State Law Department
This will acknowledge receipt of your recent letter in which you request a general outline of any statutory provisions applicable in the State of Georgia which would relate to the employment of handicapped persons in the State service.
There do not appear to be any statutory provisions in Georgia applicable to the employment of handicapped persons in the State service. Of course, you are no doubt familiar with the Workmen's Compensation Law which appears as Title 114 of the 1933 Ga. Code Annotated; however, this relates to employees injured either in public or private employment and does not relate to the employment of handicapped persons as referred to in your letter.
SOCIAL WELFARE-State Department of Public Welfa~>e A county may not regulate child-caring agencies authority over which has been placed by the Legislature in the State Department of Public Welfare.
Honorable W. E. Ireland, Director State Department of Public Welfare
March 17, 1948
I have your letter of March 12 in which you request my opinion on the following question:
"Is it necessary for child-caring institutions or agencies in Chatham County licensed by the State Department of Public Welfare to comply with the ordinance of August 8, 1947, enacted by the Commissioners of Chatham County and Ex Officio Judges?"
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The ordinance in question requires that persons desiring to conduct foster homes, day nurseries or kindergartens for the board of children in Chatham County shall make application to the County Commissioners for a permit to conduct such business, and submit to investigation by the County Commissioners. The ordinance provides a criminal penalty of $100.00 fine or thirty days detention on the County Farm for violation of its terms. The ordinance also requires that such applicants must have a permit approved by the Chatham County Department of Public Welfare in addition to the permit to be granted by the Commissioners.
As you know, Code Section 99-411 provides that the State Department of Public Welfare shall administer and supervise all child welfare activities, including the licensing and supervising of private and local child caring agencies or institutions.
It is obvious that the ordinance institutes licensing and supervisory requirements in addition to those laid down by the State law. The ordinance sets up the County Commissioners as the supervisory and administrative authority over such homes, thus making the homes answerable to both the County Commissioners and the State Department of Public Welfare. The question then is, have the County Commissioners legal authority to impose additional requirements and regulations on such homes independent of the State agency charged with supervising the field of child welfare generally and such homes specifically?
The General Assembly has granted to the Commissioners of Chatham County the "power and authority from time to time to make, ordain and establish such by-laws, ordinances, rules and regulations as shall appear to them requisite and necessary for the security, welfare and convenience of Chatham County and its inhabitants, and for preserving the health, peace, good government within the limits of the same, but not to operate within the limits of any municipal corporation, or include the police jurisdiction given by law to any municipality beyond its limits. Said commissioners may provide and enforce a penalty for the breach of such ordinances, rules, and regulatinos not to exceed a fine of $100.00 or thirty days at work upon any farm operated by said commissioners, either or both." (Ga. Laws 1919, pp. 604, 605).
This grant of authority is a general grant of police power. We must now determine whether or not this grant of authority includes the right to regulate fields wherein the General Assembly has designated a State agency as the supervisory and administrative authority.
I am very definitely of the opinion that it does not. A recent decision of the Supreme Court of Georgia is very pertinent to the instant question. In the case of Long v. The State of Ga., 42 S. E. 2d p. 729, the Supreme Court ruled that a State statute giving the Commissioners of certain counties the authority to regulate parking and traffic on the public roads of such county and to make violations of such regulations misdemeanors, was unconstitutional. The Court said: "The act in question sought to give the county commissioners authority to change and modify the terms of an existing penal statute, by permitting them to prescribe a speed limit according to their discretion. This would be a clear delegation of legislative power, and would be tantamount to substituting the discretion of the county commissioners for that of the General Assembly in prescribing the terms of a law." It seems to me that the instant situation is on all fours with the factual
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Btatus in Long v. The State, and that this decision will apply. In the decided case, the General Assembly attempted to give county com-
missioners authority to legislate in a specific, restricted field. This the Court ruled may not be done. In the instant case the Commissioners have attempted to use their broad police powers as authority for legislating in a narrow field. The analogy between the two Bituations ill obvioull, and it would seem that the solution in each case will be the same.
Further, I am of the opinion that when the General Assembly designates a State department as the administrative and supervisory agency over a given field and charges such agency with the duty of licensing and controlling all persons or institutions engaged in such field, that such a general statute excludes all other political bodies of this State from regulating the same field. If every county in Georgia were to have its own separate ordinances and regulations covering any given field of governmental activity, it would be virtually impossible for any State agency to properly execute its duties.
I am therefore of the opinion that foster homes licensed by the State Department of Public Welfare may not by County ordinance be required to obtain additional county licenses or permits to carry on their endeavors.
SOCIAL WELFARE-State Department of Public Welfare The responsibility for advising the National League of Nursing Education of the closing of the Milledgeville School of Nursing rests on the Board of Examiners of Nurses.
September 2, 1948 Miss Mabel Korsell, R. N. Educational Supervisor Board of Examiners of Nurses for Georgia
I have your letter of August 30 in which you request my oprmon as to which is the proper agency of the State government to report to the National League of Nursing Education on the closing of the Milledgeville State Hospital School of Nursing.
As you have pointed out, Georgia Code Annotated Section 84-1017, et seq., places the control of this institution under the Board of Control of Eleemosynary Institutions. This Board was abolished in 1937 and all of its powers were transferred to and vested in the State Department of Public Welfare. (Ga. Code Ann. 99-433).
Mr. W. E. Ireland, Director of the State Department of Public Welfare, advises me that it is his desire that your Board take the necessary action in informing the National League as to the closing of the School. Mr. Ireland also requests that your Board state that it is the intention of the State Department of Public Welfare to re-open the School as soon as it is possible to do so.
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STATE ~OARD OF PARDONS AND PAROLES-Investigation (Unofficial) The Judicial Council of Georgia has no authority to conduct an investigation of the State Board of Pardons and Paroles.
March 31, 1948 Honorable Charles J. Bloch
This will acknowledge receipt of your letter of March 28, 1948, in which as Chairman of the Judicial Council of Georgia you request my opinion as to whether the Judicial Council of Georgia has any legal authority to conduct an investigation of the State Pardon and Parole Board.
The Judicial Council of the State of Georgia was created in 1945 by an Act of the General Assembly (Ga. Laws 1945, pp. 155-157), which is now codified under Chapter 81-16 of the Pocket Supplement of the 1933 Annotated Code.
The duties of the Judicial Council are embraced in Section 6 of the Act creating it and from a study of this law, I concur in your conclusion that it is not possible to deduce from any of the duties enumerated in that section the power of making an investigation of the State Pardon and Parole Board by the Judicial Council.
STATE BOARD OF PARDONS AND PAROLES-Members Members of the State Board of Pardons and Paroles may receive $150. a month subsistence, plus expenses for lodging and meals, when traveling on official business.
August 12, 1948 Honorable B. E. Thrasher, Jr. State Auditor Department of Audits
This is to acknowledge your letter of August 4, 1948, in which you request my construction and opinion upon that portion of the Act of the General Assembly approved March 25, 1947, which has to do with the State Board of Pardons and Paroles. The Act referred to is to be found in the Georgia Laws of 1947 at page 673. Specifically, you ask my official opinion as to whether the members of the Board may receive legally the $5.00 per day subsistence allowance plus lodging and meals when traveling.
The pertinent part of the statute to be construed reads in full as follows: "Section II. The salary and travel expense of the members of the State Board of Pardon and Parole as provided in Section 3 of an Act approved February 5, 1943, Georgia Laws 1943 Pages 189-195, entitled an Act to create the State Board of Pardons and Parole shall be $5,000 per annum payable in equal monthly installments and each member shall in addition to said salary and in lieu of any subsistence and necessary travel expense as provided therein, receive the sum of $150 per month, plus transportation fare and per diem if travel is made by railroad or bus, or the regular mileage fee fixed by said Act where private car is used in the performance of official duties." By specific reference, the Act under consideration refers to Section 3 of an Act approved February 5, 1943, (Ga. Laws 1943, p. 185), which inter alia provides that: " ... each member (of the Board of Pardon and Parole) shall be allowed
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necessary expenses when traveling in the performance of the duties of the office. .. "
It is particularly to the above quoted excerpt that the 1947 Act refers when it recites in substance that each member of the Board shall receive the sum of $150 per month plus transportation fare and per diem in lieu of any other subsistence and necessary travel expenses provided by law.
Unquestionably the 1947 Act is ambiguous and contradictory insofar as it makes reference to the Board of Pardons and Paroles. Quite naturally and quite properly you, in the performance of your official duties, had occasion to question these inconsistencies and to ask that they be resolved by the process of legal analogy through an official opinion of the Attorney General. It is a canon of statutory construction that a statute m,ust be examined as a whole, and that the general scheme and purpose of legislation is the proper criterion for its construction. This view has been adopted by the Supreme Court of thi~ State. 5ee the case of Carroll v. Ragsdale, 192 Ga. 118.
Following this process, then, and looking at all of Section 2 of the 1947 Act, it is to be readily seen that it was the purpose of the General Assembly in passing the Act to provide, in addition to the salary paid the Board members, a subsistence allowance of $150 per month, plus transportation fare and per diem if travel is made by railroad or bus, or the regular mileage fee when private car is used in the performance of official duties. Hence the Board members are entitled to receive the $150 per months subsistence plus transportation and per diem.
It is now necessary to determine what was meant by the use of the words "per diem". Obviously these words were loosely used, but it must be presumed that the General Assembly meant something by them.
In construing statutes, words of common usage should be given their usual, ordinary, and natural meaning. See Miller v. Robertson, 266 U. S. 243.
The words "per diem" are commonly used in the United States to cover an allowance for exp~nses of officials or agents while they are upon official or proper business away from their regular headquarters or base. Webster's Dictionary defines "per diem" as meaning "An allowance or amount of so much by the day."
The usual and customary allowance payable to State officials or employees while away from their base or home office is transportation fare or five cents per mile for private car, plus expenses for meals and lodging. It follows, then, that the paym~mt or allowance of so much by the day for transportation, lodging and meals to State officials while traveling upon official business would be synonymous with the usual, ordinary, and natural meaning of the words "per diem".
There remains one last point to be cleared. There is an apparent conflict in the language of the 1947 Act. This conflict is brought about in the seventh and eighth lines of Section 2 by the appearance of the phrases "... in lieu of any subsistence and necessary travel expense as provided (in Georgia Laws 1943, p. 185), ..." This language, if left alone, would clearly prohibit the Board members from receiving both the $150 per month subsistence allowance and expenses for lodging and meals while traveling. However, the remaining portion of the Section states that each member, "... (shall) receive the sum of $150 per month, plus transportation fare an:d per diem . . ."
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The conflict is this: the "in lieu" phrases prohibit the rece1vmg of both subsistence and expenses for lodging and meals while traveling, but the latter quoted clause allows the Board members to receive both. Thus we are presented with the anomaly of a conflict between two parts of a single Act.
Fortunately, both the Supreme Court and the Court of Appeals of this State have presented decisions upon matters precisely in point with the conflict with which we are faced. The rule, as announced by these two Courts, is that when there is a conflict between two parts of a single Act, the last in position will be declared to be the law, as, from its position it is presumed to be the last expression of the legislative will. See the casts of Lamar v. Allen, 108 Ga. 158 (5); Board of Drainage Commissioners v. Carey, 30 Ga. App. 378 (1)
The application of the above rule to the present conflict results in the validation of the latter portion of the Act quoted, which permits the Board members to receive both the $150 per month subsistence and expenses for lodging and meals while traveling.
My opinion, therefore, is that the members of the Board of Pardon and Parole may receive the $150 per month subsistence and in addition thereto may receive expenses for lodging and meals incurred while traveling upon official business.
STATE DEPARTMENT OF VETERANS SERVICE-Education Division The War Veterans Children Education Act is unconstitutional as granting a donation of gratuity to a "person".
March 22, 194S Ron. C. Arthur Cheatham, Director Department of Veterans Service
I am pleased to acknowledge receipt of your letter of March 19th, in which you state that the State Department of Veterans Service submitted to Mr. B. E. Thrasher, Jr., Assistant Budget Director, a request for additional funds in accordance with the War Veterans Children Education Act, (Ga. Laws 1945, pp. H'l5-167) and that the budget request was disapproved by the StatE> Auditor. In your letter you quote from Mr. Thrasher's letter of February 20, 1948, as follows:
"Based on my reading of the various laws, it is necessary that this budget request be transmitted to you unapproved, and it shall remain in this status until definite legal interpretations are furnished.
"The laws which I have read which caused the action of returning this budget unapproved are cited as follows:
"1. The appropriations made to the Veterans Service Office to date have been 'for the cost of operating the Veterans Service Office' and this does not include funds for the payment of benefits.
"2. Article VII, Section 1, Paragraph 11, Subsection 1 of the Constitution of Georgia reads as follows: 'The General Assembly shall not by vote, resolution or order, grant any donations or gratuities in favor of any person, corporation, or association."
You now request an official ruling from me as to the constitutionality of the above statute in order that it may be determined whether or not State funds can be legally spent for the purposes set forth in the statute under con-
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sidetation. Article 7, Section 1, Paragraph 2 of the State Constitution reads as follows:
"(1) The General Assembly shall not by vote, resolution or order, grant any donation or gratuity in favor of any person, corporation or association."
The above provision of the Constitution would prohibit the expenditure of State funds for the purpose of providing a college education for children of soldiers, sailors and marines who were killed or died in service, or whose death resulted from such services. It would be necessary for the Constitution of this State to be amended in order to make such expenditures. It should be noted in passing that it was necessary for the Constitution itself to contain a special provision in order to make provision for the payment of pensions to ex-Confederate soldiers and to their widows. See, Article 7, Section 2, Paragraph 1 (5). Likewise, it is necessary to have a similar constitutional provision in order to make the payments for the education of veterans' children under the statute which we are now considering.
I am also in accord with Mr. Thrasher's statement to the effect that such benefit payments cannot be classified as "the cost of operating the Veterans Service Office."
It is my suggestion that this statute which attempts to provide funds for this worthy cause be called to the attention of the next session of the Legislature in order that the General Assembly may consider proposing an amendment to the Constitution of our State so that such payments can be made for the purposes set forth in the Act.
STATE PORTS AUTHORITY-Insurance The State Ports Authority is authorized to negotiate insurance on property belonging to it.
December 7, 1948 Honorable R. F. Fowler, Executive Director State Ports Authority
This will acknowledge receipt of your letter of December 3, 1948, in which you state:
"No doubt you are aware of the fact that financial arrangements have been made whereby the State Ports Authority will acquire ownership of the Savannah Quartermaster Depot on or before December 15, 1948. The U. S. Government carries no insurance and it will therefore be necessary that the Authority take out insurance to become effective on date of acquisition.
"Since the law makes the Authority a corporation with any of the powers usually possessed by a private corporation performing similar functions (Par. (9), Section 4), it has been assumed that the Authority is empowered to negotiate insurance with private insurance companies.
"This matter is to be presented at a meeting of the Authority on December 8th. It would be appreciated if you can give us an opinion prior to that date as to whether the State Ports Authority is empowered to negotiate its own insurance or whether the property in question comes under the law requiring that the Governor insure all State property for 50% of its value."
Section 91-403 of the Code of Georgia provides: "The Governor shall keep insured, at one-half tht::ir value, all of the public buildings of the State and the State Library."
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In my opinion, the above Code Section has reference to public buildings of which title is in the State.
You do not specifically state that the title to the buildings of the Savannah Quartermaster Depot will be in the State of Georgia or the State Ports Authority.
If the title is in the State, then Section 91-403 would apply. If in the State Port Authority, then it would be my opinion that the Authority would be authorized to negotiate its own insurance on that property.
STATE PORTS AUTHORITY-Lease of property The State Ports Authority may lease a portion of its real property to either the Savannah Port Authority or the Brunswick Port Authority, each of which, in turn, has the power to receive such leases.
Honorable R. F. Fowler, Executive Director State Ports Authority
December 7, 1948
I am pleased to acknowledge receipt of your letter of December 3, 1948, which resolves itself in asking my opinion of the following question:
"Can the State Port Authority lease a portion of its real property to the Savannah Port Authority or the Brunswick Port Authority'?"
Section 98-202 of the 1933 Annotated Code provides:
"There is hereby created a body corporate and politic to be known as the State Ports Authority, which shall be deemed to be an instrumentality of the State of Georgia and a public corporation, and by that name, style and title said body may contract and be contracted with, sue and be sued, implead and be impleaded, and complain and defend in all courts of law and equity. The Authority may make necessary rules and regulations for its own government. The Authority may delegate to one or more of its members, or to its officers, agents, and employees such powers and duties as it may deem proper. Said Authority shall have perpetual existence."
Section 98-205 of the 1933 Annotated Code provides, in part:
"The authority shall have powers: "(3) to acquire in its own name by purchase, on such terms and conditions and in such manner as it may deem proper, . . . real property or rights of easem*nts therein or franchises necessary or convenient for its corporate purposes, and to use the same so long as its corporate existence shall continue and to lease or make contracts with respect to the use of or dispose of the same in any manner it d(,ems to be best advantage of the Authority..." "(5) to make contracts, and to execute all instruments necessary or convenient, including contracts for construction of projects and leases of projects or contracts with respect to the use of projects which it causes to be erected or acquired." "(10) to do all things necessary or convenient to carry out the powers expressly given in this Chapter." "(15) to contract with any municipality or county for the leasing, operation or management of real or personal property in or adjacent to any seaport of this State."
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"(21) to do any other things necessary or proper to foster or encourage the commerce, domestic or foreign, of the State, the United States of America or of the several sister states."
It is my opinion that, under the broad and comprehensive corporate powers granted to the State Port Authority, it may lease or make contracts with other corporations with respect to the use of its real property or rights of easem*nts therein or franchises, in any manner it deems to the best advantage of the Authority, in keeping with the purpose for which the Authority was created.
Under the Act creating the Brunswick Port Authority, Georgia Laws 1945, pages 1023-1039, Section 4 thereof provides, in part, as follows:
"The Authority shall have powers,
"(15) to contract with the City of Brunswick, the County of Glynn or the State of Georgia or any instrumentality thereof for the leasing, operating or management of real or personal property in or adjacent to the Port of Brunswick."
It is my further opinion that, under the powers granted, the Brunswick Port Authority, under the provisions of the above stated Act, may lease and make contracts with the State Port Authority in keeping with the purposes for which the Authority was created.
The Act creating the Savannah Port Authority, Georgia Laws 1925, pages 1451-1466, provides in Section (1) (page 1464):
" ... the Savannah Port Authority for the harbor and port of Savannah is hereby declared to be a body corporate and politic, and as such public corporation shall have perpetual existence, with full power and authority to have and use a common seal, to sue and to be sued, to incur debts, liabilities and obligations, to exercise the right of eminent domain, to purchase, acquire by gift, construct, lease andjor operate any terminal or transportation facility within or without the corporate limits of the City of Savannah, in Chatham County, Georgia; to make charges for the use thereof, and for any of such purposes to own, hold, lease, and/ or operate r~::al or personal property, and to do all acts and exercise all powers authorized by and subject to the provisions of said constitutional amendment, of said ordinance of the Mayor and Aldermen of the City of Savannah, and of this Act."
It is my further opinion that, under the authority granted the Savannah Port Authority by the above stated Act, it may lease, andjor operate, any terminal facility within or without the corporate limits of the City of Savannah, subject to certain conditions contained in said Section.
As a matter of information to you, I have been advised by the State Auditor that the budgetary procedure by which the Savannah Quartermaster Depot property will be purchased, will be for the State Ports Authority, acting as agent for the State of Georgia to purchase said property and invest title thereto in the State of Georgia.
Under Section 98-205 of the 1933 Code of Georgia, the Governor is authorized to convey, for and in behalf of the State, title to such lands to the Authority upon payment to the State Treasury for the credit of the sinking fund of the State of the reasonable value of such lands, such value to be determined by three appraisers to be agreed upon by the Governor and the Chairman of the Authority.
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On the other hand, it may be deemed advisable by the Governor to wait until the Legislature convenes to obtain the necessary legislation to transfer the use of said property to the Authority.
TORTS-State Highway Department (UnoffiCial) The State is not liable for property damagf inflicted by a State Highway Patrol Vehicle.
August 17, 1948 Honorable L. H. Hilton Hilton and Hilton Attorneys at Law
I have been instructed by the Attorney General to answer your inquiry addressed to the Department of Public Safety with reference to an automobile collision involving a State Highway Patrol automobile and your client's automobile, occuring on about March 20, 1948.
As you know the Attorney General is prohibited from rendering official opinions to anyone except certain designated Department Heads; therefore, the ensuing remarks are necessarily unofficial and not binding upon anyone.
The State of Georgia does not carry any public liability or property damage insurance on the motor vehicles used by the State Department of Public Safety. There is no provision of law which will allow this department or the Governor to purchase insurance for such motor vehicles. I am informed that the Governor would like to do so, but until the General Assembly gives him that. authority he is prohibited from using State funds for that purpose.
Also you will notice in the case of Ramsey v. Hamilton, 181 Ga. 365, it was held that the State can not be sue:d without its consent, and in Tounsel v. State Highway Department, 180 Ga. 112, the court held that the State is not liable for torts unless made so by statute. The State is not liable for torts of patrolmen, officers or agents of the Highway Patrol under the act creating the same.
TRADE MARKS-Businesses PUBLIC HEALTH-Sanitation (Unofficial)
1. Fictitious business names must be registered with the Superior Court Clerk of each county in which a place of business is maintained. 2. The removal of dead animals from the State is not prohibited.
September 20, 1948 Honorable Robert L. McCrary, Jr. Attorney at Law
Your letter of September 13, 1948, is acknowledged, in which you seek the following information:
(a) State requirements for registering a fictitious name in the State of Georgia.
(b) Whether Georgia laws prohibit the removing of dead animals from the State by a rendering plant established in an adjoining state.
As to your first question outlined above, Georgia Code 1933, 1947 Supplement, Sec. 106-301, is quoted for your information:
"It shall be unlawful for any person, persons, or partnership to carry on, conduct, or transact any business in this State under an assumed, fictitious, or trade name, or under any other designation, name, or style, other than the
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real name or names of the individual or individuals conducting or transacting such business, unless .said person, persons, or partnership shall file, in the office of the clerk of the superior court in each county in which said person, persons, or partnership shall maintain an office or place of business, an affidavit signed by said person or persons, setting forth the full name or names and the address or addresses of the true owner or owners of said business.''
Concerning your second question, the following Sections of the 1933 Code of Georgia, 1947 Supplement, are quoted for your information:
Section. 88-9923: "If any person shall place the carcass of a horse, cow, sheep, goat, dog, or other animal in any stream or road, street, lane, or alley, or place any such carcass upon the premises of another without burying it so deep as to prevent all stench therefrom, he shall be guilty of a misdemeanor." Section 88-9924: "In all counties in which there is a city of 1,000 or more inhabitants, according to the last Federal census, if a domestic animal or domestic fowl shall die without the corporate limits of a town or city and shall be within two miles of the residence of the owner thereof, and the owner shall fail or refuse to bury the carcass deep enough to prevent stench therefrom, within three hours after notice of the death and the location of the carcass, he shall be guilty of a misdemeanor. The carcass of such animal may, within three hours after such notice, be removed and at once manufactured into fertilizers." As you know, the Attorney General is prohibited by law from rendering official opinions to anyone other than the Governor and the heads of the various State Departments. Therefore, the information contained in this letter is unofficial, and is not binding upon anyone.
VETERANS-Bonus (Unofficial) Georgia has passed no statute providing for Soldiers and Sailors bonus to World War II Veterans.
July 30, 1948 Eugene Bryant Pritchett
In the absence of the Attorney General from the State, the writer is pleased to acknowledge receipt of your letter of July 27, 1948', in which you ask the following questions:
"Was such a Bonus Law ever passed in Georgia for the Veterans of World War II?" (Soldiers & Sailors Bonus)
"If so how may I secure the proper forms for obtaining same? "If such a law has not been passed (as some states have) is there one in process of being passed and in brief what is in it?" No statute has been passed in Georgia providing for a bonus to World War II veterans and, so far as the writer knows, there is none contemplated. The Attorney General is prohibited by law from giving an official opinion to anyone other than the Governor of the State or the heads of the various State Departments, and the information contained herein is an expression of the writer's personal opinion only and is not to be binding upon anyone.
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VETERANS-Diseiharge (Unofficial) Fee for recording of discharge is paid by county, but fee for certified copies is payable by applicant.
January 9, 1948 Honorable L. A. Styles Clerk Superior Court Fannin County
Your letter of January 6, 1948 addressed to the Honorable Eugene Cook has been referred to me for reply.
As you probably know, the Attorney General is not permitted to render an official opinion to anyone other than the various heads of the executive departments of the State. However, I shall be glad to assist you in the matter but my views should only be considered as the personal opinion of the writer.
By the act of the General Assembly approved March 27, 1947, Georgia Laws 1947, page 1177, Code Section 24-2727 was amended by the elimination of the proviso for charging 25 cents for the recording of a soldiers' discharge certificate by the Clerk of the Superior Court. The Act further declared that the service was to be rendered free of charge to all veterans of the past two World Wars. In lieu the following provision was enacted:
"Section III. In all counties where the clerk of a superior court is exclusively on a fee basis, the said clerk shall be paid the sum of 50c for each discharge certificate recorded by him. This sum is to be paid out of the county treasury by the proper county fiscal authority on the first day of each month, based on the number of discharge certificates filed and recorded by the said clerk during the preceding month."
From the above it appears clear to me that the county is authorized to pay only for the recording of the discharge and that the veteran is relieved only of this charge and that if you issue any certified copies of the recorded discharge to the veteran you would be authorized to charge the usual fee for such service, payable by the veteran.
VETERANS EDUCATION COUNCIL-Meetings 1. The Veterans Education Council must meet once each month. 2. The Council's powers may not be exercised by an Executive Committee of less than six.
February 27, 1948 Mr. Edward B. Liles Member, Veterans Education Council State of Georgia
I have your letter of February 23rd in which you request my opinion on the following two questions:
1. Is it mandatory that the Veterans Education Council meet once each month?
2. If the Council must meet once each month, may an Executive Committee be delegated the authority to act in behalf of the Council?
The Statute in question provides as follows: "The members of the Council shall meet once each month in the office
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of the Director, and at such meetings shall give attention to all things and matters properly coming under the jurisdiction of the Board. The meetings herein provided shall be for stated periods, but shall not exceed more than two days in any one session. Call meetings by the Board may be had by the Chairman thereof or by the Director of the Education Council. Said provisions shall be effective four months after enactment of this law." (Ga. Laws 1947, page 1145).
As to question 1, it seems to me that the answer turns upon the construction to be given the word "shall" in the sentence "The members of the Council shall meet once each month. . . ." It is well settled in Georgia that the word "shall" is a mandatory rather than a directory or permissive word. In Garrison v. Perkins, 137 Ga. 755, the Court said:
" ... in its ordinary signification "shall" is a word of command, and the context ought to be very strongly persuasive before that word is softened into a mere permission".
See also, Sutherland on Statutory Construction, 3rd Edition, Vol. 2, Page 216 which states:
"Unless the context otherwise indicates, the use of the word "shall", except in its future tense, indicates a mandatory intent".
It is my opinion that the context of the Act strengthens the ordinary rule that the word is mandatory, rather than indicating a directory intent by the Legislature. Although I understand that a strict construction of this statute may work inconveniences on some members of the Council without benefit to the Veterans, I am unable to come to any conclusion other than that the law requires that the Council meet once each month.
As to question 2, I am of the opinion that the Executive Committee may not Act for the Council unless such a Committee have at least six members.
This opinion is based on the paragraph of the law in question which states:
"Members of the Council shall receive no per diem or other payment except actual traveling expenses and actual expenses incurred when upon attendance upon meetings of the Board. Six members shall constitute a quorum at any regular or special meetings." (Ga. Laws 1947, page 1145).
See also, Morton vs. Talmadge, 166 Ga. 620.
WORKMEN'S COMPENSATION-Geo,rgia Bureau of Investigation The widow of an employee of the Georgia Bureau of Investigation whose death arose out of and in the course of his employment is entitled to death benefits under the Workmen's Compensation Law.
March 9, 1948
Honorable M. E. Thompson Governor of Georgia
This will acknowledge receipt of your letter of March 9, 1948, requesting that I give you an official opinion on whether or not the widow of Georgia Bureau of Investigation Investigator, Garland Fields, slain last week, can be paid death benefits under the Georgia State Workmen's Compensation Act.
By an Act of the 1943 General Assembly (Ga. L. 1943, pp. 401, 402, 403) employees of all departments of the State of Georgia were placed under the
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Workmen's Compensation Laws of Georgia, which is codified under Title 114 of the 1933 Annotated Code of Georgia.
Under this law the State Board of Workmen's Compensation passes upon all questions of fact to determine if an employee's injury or death arose out of and in the course of his employment, the amount of compensation, hospital and burial expenses, and issues an award or judgment based upon its findings.
If it is determined by the Workmen's Compensation Board under the facts in this case that Mr. Fields met his death while acting in the line of his duties, his widow would be entitled to the maximum benefits provided by the Workmen's Compensation Act in death cases.
No d~::partment of the State Government can pay workmen's compensation benefits until and after an award has been rendered by the Workmen's Compensation Board.
Mrs. Fields should immediately file a claim with the Secretary of the State Board of Workmen's Compensation on the forms furnished by them in order that her rights under the Workmen's Compensation Act may be passed upon and determined by the Workmen's Compensation Board as provided in the workmen's Compensation Act.
WORKMEN'S COMPENSATION-State Parks 1. One employing personnel to operate Jekyll Island hotel and park facili-ties is an independent contractor and must carry Workmen's Compensation Insurance. 2. The 20o/o Federal Tax imposed where music is used in the dining room would apply to such independent contractor. 3. Such independent contractor should carry public liability insurance.
March 3, 1948
Ron. Thomas H. Briggs, Jr., Manager Jekyll Island State Park
I have your letter of February 23, in which you request my opinion on the following questions:
"1. Would I, as an employer of personnel to operate the hotel and its park facilities, be liable for workmen's compensation insurance? I understand that the State of Georgia is not required to carry compensation insurance on its employees.
"2. As the operator of a hotel owned by the State, would I be liable for the 20% Federal luxury tax imposed where music is used in the dining room?
"3. Would also like to know of my status in regard to public liability insurance."
I have carefully considered the provisions of the contract entered into by you and the Director of State Parks on February 14, 1948, and it is my opinion that you are an independent contractor insofar as the operation of the park facilities are concerned.
As to Question 1, it is therefore my opinion that your operation of the park and its facilities places you within the purview of the Georgia Workmen's Compensation Act. The method of paying compensation used by the State of Georgia is not applicable to you, since your employees are not State employees.
As to Question 2, Regulation 43 (1941), Section 101.16, relative to In-
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ternal Revenue Code, Section 1701, removes the exemption of States from the payment of the cabaret tax. Further, your status as an independent contractor would seem to make any State exemption inapplicable. It is my opinion, there fore, that the 20% Federal tax will apply in the hotels operated by you if the other conditions warranting its application are present.
Under the terms of your contract you have assumed "all obligations in connection with the operation of all facilities that may be undertaken by, or required of" you, as manager. As to Question 3, it would seem that under this provision of your contract you might become liable for tortious or negligent acts of your agents and employees, and I consider it strongly advisable that you have insurance to cover such liability.
The State Parks Department is bound by the contract to the responsibility of maintaining the buildings, grounds, roads, etc. Therefore, it would seem to be unnecessary for your insurance to cover liabilities arising from the negligent performance of such maintenance. However, it seems to me at least possible that accidents may arise caused by the conjunctive negligence of both your employees and those persons maintaining the physical facilities of the park, or a dangerous condition in the facilities themselves. It is extremely difficult therefore to determine exactly what insurance coverage you should have. It seems to me that ultimately this is a question which you should decide for yourself, in the light of your experience and your knowledge of the situation at the Jekyll Island Park.
As you know, I am prohibited by law from rendering official opinions or advise to anyone except the Governor and the heads of the various State departments. The above remarks are therefore necessarily personal, unofficial and not binding upon anyone.
PART III Opinions of the Attorney General
1949
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AGRICULTURE-Farmel'1S Markets
June 30, 1940 The Commissioner of Agriculture has authority to purchase a quick-freezing plant for operation in connection with farmers market. Hon. Tom Linder Commissioner of Agriculture I am pleased to acknowledge your letter of June 28th, in which you state that the Department of Agriculture desires to purchase a quick freezing plant and operate it in connection with the Glennville Market in Tattnall County. In your letter you state the following: "For your information, cold storage is essential on farmers' markets in connection with handling over-supplies from day to day and from week to week so as to avoid having to force them on sale on any given day when the market may be glutted. For your further information, such cold storage would, I believe, constitute warehousing for agricultural crops under refrigerating conditions." Section 5-204 of the Code of Georgia provides in part as follows: "The Director shall be the chief executive officer of the Bureau of Markets and it shall be his duty to organize said Bureau and in cooperation with the Commissioner of Agriculture to plan and formulate the work to be done and carry out the provisions of this Chapter; and he shall-(h) Whenever it shall appear that any agricultural products are liable to spoil or waste or depreciate in value for lack of ready market, take such steps as may be deemed advisable to benefit the producers, distributors and consumers thereof, and to prevent waste." Section 5-208 of the Code provides : "In addition to the powers and duties heretofore given to establish markets and prevent waste of farm products, it is further Emacted that the Commissioner of Agriculture is authorized and directed to procure by purchase, lease, rent, gift or otherwise, as in his discretion he may see fit, necessary market sites in this State on which to conduct farmers markets."
From the above provisions of law, it seems clear that the Commissioner of Agriculture has the power and authority to employ reasonable means to prevent the waste or depreciation of farm products in order to benefit the producers, distributors and consumers of this State. The Commissioner of Agriculture has a broad discretion in taking "such steps as may be deemed advisable" in connection with preventing waste or depreciation in value for lack of a ready market.
I am of the opinion that the Commissioner of Agriculture is authorized to exercise his discretion in determining whether or not a cold storage plant is essential in order to prevent the waste or spoilage of farm products. A cold storage plant might well be the means by which a ready market could be established for agricultural products and thereby prevent the depreciation of such products in value. This is a matter which addresses itself to the sound discretion of the Commissioner of Agriculture, provided ci course, the State has funds available to promote such a project.
Should it become necessary to acquire additional land in connection with this project, I wish to call your attention to the Act approved January 30, 1945, (Ga. L. 1945, pp. 120-121) which sets forth the m,ethod and procedure to be followed where the State desires to take private property for public purposes.
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This Act requires the unanimous consent of the Governor, State Auditor and Attorney General before such property can be acquired by the State. Even though your letter did not specifically state whether or not it would be necessary to acquire additional land, I thought it proper to call your attention to the provisions of the above stated Act in order that you might have them before you, should the circ*mstances involved make such a reference applicable.
AGRICULTURE-Food and Drugs A veteran's certificate of exemption does not apply to a regulatory tax imposed for the support of the Milk Control Board.
February 9, 1949
Ron. C. G. Duncan, Chairman
State Milk Control Board
I am pleased to acknowledge your letter of February 4th, in which you
state the following:
"Will you please give the Milk Control Board a ruling as to whether a
disabled veteran of World War I or II is entitled to a free license to handle
milk under the Milk Control Act.
"Our interpretation has been that this is a regulatory tax for the support
of the Milk Control Board and therefore no veteran or other person buying or
selling milk is exempt from this Act."
'
I am of the opinion that your view expressed above is a correct interpreta-
tion of the law. The Veterans Exemption Law as set forth in Chapter 84-20,
together with subsequent amendments including the Act approved March 27,
1947, (Ga. L. 1947, pp. 1163-1165) is not designed to exempt a veteran from a
regulatory license. The exemption applies primarily to revenue measures.
A review of the law relating to license. fees collected by the Milk Control
Board, (Chapter 42-5 of the Amended Code) will show that such fees are of a
regulatory nature and not primarily for the purpose of raising revenue for the
State. Section 42-508 of the Milk Control Act provides in part as follows:
"All monies received by the Board as fees for licenses or otherwise shall be
paid into the State Treasury and kept in a separate fund to be known as the
Milk Control Fund. 97% of such fund is hereby allocated to the Milk Control
Board for the enforcement of this law and is hereby appropriated, and shall be
continuously available for that purpose, and shall be disbursed on warrants of
the Governor as provided by law. . . ."
My opinion in this matter is in accordance with the ruling which I made to
Ron. Tom Linder, Commissioner of Agriculture, under date of March 29, 1946,
in which it was held that a veteran's certificate ofexemption does not apply to a
regulatory fee imposed on wholesale fish dealers. (See, Opinions of the At-
torney General, 1945-1947, p. 484).
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AGRICULTURE-Food and Drugs County Boards of Health are without authority to make assessments to cover expenses of inspection, sale, distribution, etc. of meat products. such expenses to be paid out of County Treasury.
July 19, 1949
Dr. T. F. Sellers, Director Department of Public Health
In reply to your letter of July 14, 1949, requesting an opinion covering the 1egal authority of a county health board to enact rules and regulations for assessing certain fees for inspection, sale, distribution, etc. of meat and meat products, I will first call your attention to Code Section 88-201 of the Annotated Code of Georgia of 1933, Pocket Edition, which reads as follows:
"88-201. Creation; mem.bership; terms of office; vacancies; authority.-A county board of health for each county is hereby created, composed of three persons, two of whom shall be members of such board by virtue of their offices, to wit: the county superintendent of schools, and the chairman of the board of roads and revenues of the county, or some other member of the board of roads and revenues of the county appointed by said chairman, or in counties having no such board, the ordinary of said county, and one reputable physician elected by the grand jury of the county, at the session of the superior court for said county next preceding the regular January session of the county board of health of said county, or at any succeeding session of said court. The Physician so elected shall hold office for a term of four years, and until his successor is elected and qualified. All vacancies shall likewise be filled by elections by the grand jury, and the person so elected shall hold office for the remainder of the term and until his successor is elected and qualified. The county boards of health shall have supervision over all matters relating to health and sanitation in their respective counties, with authority to declare and enforce quarantine therein subject to the provisions of this law. Any town or city within the county having a population of not less than 5,000 or not more than 20,000 as shown by the most recent decennial United States census may appoint two members of the county board of health, and the membership of such board of health shall be increased to include such two members from each such city or town: Provided, that said town or city participates in the expenses of the county health department as provided in section 88-313. The said two members shall consist of the mayor or city manager, as determined by the governing body of the town or city, and one other citizen appointed by the mayor and council or other governing body of the town or city. The term of such member shall be for four years or until his successor is appointed and qualified. Each city within the county having a population of more than 20,000 as shown by the most recent decennial United States census shall appoint four members of the county board of health from such city as follows: The mayor or city manager, as determined by the governing body of the city, and three members appointed by the mayor and council of the city, and the membership of such board of health shall be increased to include such four members from each such city. The term of office of the three appointed members shall be four years or until their successors are appointed and qualified, except that when the first appointments are made one member shall be appointed for two years, one for three years, and one for four years. All vacancies shall be filled by the same
430
method as above set forth for the appointment of such members, arid such appointee shall hold office for the remainder of the term and until his successor is appointed and qualified. Each member of the several county boards of health, whether ex-officio or appointed as herein provided, shall have a certificate of membership on such board signed by the Director of the Georgia Department of Public Health, and take the oath of office usually taken by other county officers, before assuming the duties of the office. The clerk of the superior court of the county shall certify, under seal, to the Director of the Georgia Department of Public Health, the names of the county school superintendent, the chairman of the board of roads and revenues, or ordinary, and the physician appointed to the board by the grand jury, with the dates of appointment and termination, and the clerks of the several towns and cities having representation on the county boards of health shall likewise certify, under seal, to the Director of the Georgia Department of Public Health the names of the members from such towns and cities. The county board of health shall have authority to pass rules and regulations which shall apply to citizens and premises within the limits of any city or town, or other area having a density of population comparable to that of a city or town whether incorporated or not, and which may or may not apply to citizens or premises in less densely populated or rural areas, as well as regulations which shall apply only to citizens or premises in sparsely populated or rural areas which may or may not apply to citizens or premises of cities, towns, or densely populated areas."
Also, in this connection, see Code Sections 88-203 and 88-206 of the 1933 Annotated Code of Georgia, which reads as follows:
"88-203. RuJe,s and regulations, authority of county boards to make.-The county boards of health of the several counties shall have full power and authority to adopt, enact, establish, and maintain all such rules and regulations not inconsistent with the laws and Constitution of this State and of the United States, as they may deem necessary and proper for protecting the health of their respective counties, and for preventing the introduction, generation and spread of infectious and contagious diseases therein."
88-206. Expen.s,es, how paid.-All cost and expense necessary and proper for carrying out the provisions of Chapters 88-2 and 88-3 shall be paid out of the county treasury, and city treasuries as provided in section 88-313, and from funds of the Georgia Department of Public Health which may be appropriated by the General Assembly of Georgia, or allotted by the Federal Government, or other agencies as grants-in-aid."
In view of these Code Sections, I am of the opinion that the various county boards of health are without authority to make any assessments against anyone to cover the expenses incurred by said board. These expenses are to be charged against the county treasury and any rule or regulation provided otherwise would be inconsistent with Code Section 88-206 of the Annotated Code of Georgia of 1933, as quoted above.
431
AGRICULTURE-Soil Conservation (Unofficial) Sets out certain provisions of Soil Conservation Law with reference to
annexing land to Soil Conservation District.
June 9, 1949
Honorable Tom W. Christian Commissioner Roads and Revenue Catoosa County
I am pleased to acknowledge your letter of June 8, 1949 in which you asked my advice as follows:
"I understand the Soil Conservation Service plans to take Catoosa County by annexing small portions of the county to the conservation district.
"I would like to have an interpretation of Section V, paragraph H, of the State Soil Conservation Districts Law. I would also like to have a ruling as to whether 'additional territory' means Catoosa County or not, or whether they can come in the county by taking small portions of 25 farms or less."
Section 5, paragraph (h) from the State Soil Conservation Law is codified under Code Section 5-1926 of the 1933 Code of Georgia, Annotated, Pocket Supplement, and provides:
"Additional territory, inclusion of.-Petitions for including additional territory within an existing district may be filed with the State Soil Conservaton Committee, and the proceedings herein provided for in the case of petitions to organize a district shall be observed in the case of petitions for such inclusion. The Committee shall prescribe the form for such petition, which shall be as nearly as may be in the form prescribed in this Chapter for petitions to organize a district. Where the total number of landowners in the area proposed for inclusion shall be less than 25, the petition may be filed when signed by a majority of the landowners of such area, and in such case no referendum need be held. In referenda upon petitions for such inclusion, all owners of land lying within the proposed additional area shall be eligible to vote."
Section 5-1901 of the 1933 Annotated Code of Georgia, Pocket Supplement provides:
"Creation of districts; petition of landowners.-Any 25 owners of land lying within the limits of the territory proposed to be organized into a district may file a petition with the State Soil Conservation Committee asking that a soil conservation district be organized to function in the territory described in the petition."
Section 5-1902 of the 1933 Annotated Code of Georgia, Pocket Supplement provides in part:
"(3) A description of the territory proposed to be organized as a district, which description shall not be required to be given by metes and bounds or by legal subdivisions, but shall be deemed sufficient if generally accurate;"
Section 5-1905 of the 1933 Annotated Code of Georgia, Pocket Supplement provides:
"Additional territory, hearing as to inclusion.-If it shall appear upon the hearing that it may be desirable to include within the proposed district territory outside of the area within which due notice of the hearing has been given, the hearing shall be adjourned and due notice of further hearing shall be given throughout the entire area considered for inclusion in the district, and such further hearing held."
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Section 5-1907 of the 1933 Annotated Code of Georgia, Pocket Supplement provides:
"In making such determination and in defining such boundaries, the Committee shall give due weight and consideration to the topography of the area considered and of the State, the composition of soils therein, the distribution of erosion, the prevailing land-use practices, the desirability and necessity of including within the boundaries the particular lands under consideration and the benefits such lands may receive from being included within such boundaries, the relation of the proposed area to existing watersheds and agricultural regions, and to other soil conservation districts already organized or proposed for organization under the provisions of Part VIII, and such other physical, geographical, and economic factors as are relevant, having due regard to the legislative determination set forth in sections 5-1802 to 5-1805, inclusive. The territory to be included within such boundaries need not be contiguous."
Section 5-1806 of the 1933 Annotated Code of Georgia, Pocket Supplement provides in part:
" (1) 'District' or 'soil conservation district' means an agency of this State organized in accordance with the provisions of Part VIII of Title 5, for the purposes, with the powers and subject to the restrictions hereinafter set forth."
"(5) 'Land occupier' or 'occupier of land' includes any person, firm or corporation, other than the owner, who shall be in possession of any lands lying within a district organized under the provisions of Part VIII of Title 5, whether as lessee, renter, tenant, or otherwise."
The statutes provide that any 25 owners of land lying within the limits of the territory proposed to be organized into a soil conservation district may file their petition with the State Soil Conservation Committee, asking that a soil conservation district be organized to function in the territory provided in the petition.
Section 5-1924 of the 1933 Annotated Code, Pocket Supplement, provides that the boundaries of such district shall include the territory as determined by the State Soil C'?nservation Committee, but that in no event shall they include any area included within the boundary of another soil conservation district.
Section 5-1926 provides that petitions for including additional territory within an existing district may be filed with the State Soil Conservation Committee and the proceedings to take in such additional territory shall be those provided under the Soil Conservation Act in the case of petitions to organize a district. The Committee has authority to prescribe the form of such petition and where the total number of landowners in the area proposed for inclusion shall be less than 25, the petition for including the additional territory may be filed when signed by a majority of the landowners of such an area, and in such case no referendum is required. In referenda upon petition for inclusion, all owners lying within the proposed additional area are eligible to vote.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
4:13
BANKS AND BANKING-Branch Banks A bank which sends, each week, into a neighboring town a car for the purpose of rendering a banking service, and which pays a city banking license fee in such town, has in effect illegally established an office in that town.
March 1, 1949 Honorable Augustus P. Persons Superintendent of Banks
Your letter of February 25th, in which you state: "We have, operating under the supervision of this Department, a bank that sends one of its paid employees to a neighboring town located in another county, in a car once a week, with cash for the purpose of rendering a banking service of making change, taking applications for loans and receiving deposits. The bank admits that they pay a city license fee for banking in the town in which the service is rendered and they contend that they are only serving customers of their bank and have so served same for a long period of years, and at a time when no banking facilities were available. However, at this time there is a state chartered bank located in the town where this neighboring bank visits once a week to render banking service. This practice has heen in operatior> for almost fifteen years. ThE~ question is, does this practice constitute branch banking under the provisions of the Georgia banking law?" received: Under Section 13-203 of the Code it is provided among other things that no new or additional branch banks may be established after January 1, 1920. In an opinion rendered by me on a similar question dated July 23, 1946, which may be found on page 23 of the published Opinions of the Attorney General, 1945-47, I stated: "Section 13-901 of the Code which provides for the incorporation of banks provides that the application for incorporation shall name the particular city, town or village where the bank office is to be located. I am of the opinion that the banking law contemplates that the business of the bank shall be transacted in the office of the bank". It is my opinion that it would not be permissible for a bank incorporated to do business in one city to have an office in another city or town to render banking service. It is also my opinion that a paid employee of a bank rendering banking service by use of an automobile in a city or town other than where the bank is located, especially where the bank pays a city license fee for banking to render banking service and where a regular schedule each week was established, would have the same effect as establishing an office in said city or town and, therefore, would not be permissible under the law.
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BANKS AND BANKING-Credit Union Act. If application for charter under the Act is in order and is consistent with the terms of the Act, the Superintendent of Banks may not arbitrarily reject the application because he believes the purpose of the application is contrary to the purpose of the Act.
October 27, 1949
Honorable A. P. Persons Superintendent of Banks
I am in receipt of your letter of October 20, 1949 in which you state the following:
"We are in receipt of an application for charter for approval by this Department of Southern Merchants Credit Union, Augusta, Georgia.
"It is stated in the application that the membership is limited to wholesalers, retailers, merchants, manufacturers and retired mercantile m1.m.
"It is our belief that the intent and purpose of the Credit Union Act was to promote thrift, savings, and to counteract the loan shark evil in Georgia in industries, corporations or firms employing a large number of people, and the larger per cent of the charters which have been issued from this Department have been of that nature in the past.
"We would like an opinion from your Department as to whether the Banking Department would be within its rights in declining said application for credit union upon the grounds that it is our belief its intent and purpose is contrary to the real spirit and purpose of the credit union act."
The Credit Union Act was passed in 1925 and was amended in 1935 and in 1943. These amendments, however, bear no relationship to the particular point involved in your problem.
Section 1 of the Act reads in part as follows: " ... that any number of persons, not less than eight, may incorporate ior the purpose of organizing a Credit Union, in accordance with the provisions of this Act." Section 2 reads in parts as follows: "The By-Laws shall provide: The qualifications for membership." Section 9 reads as follows: "The membership of the Credit Union shall consist of the incorporators and such persons, societies, associations, co-partnerships and corporations as may be duly elected to membership and have subscribed to one or more shares and have paid for same in whole or in part and have paid the entrance fee and complied with all other requirements contained in the By-laws." Section 13 reads in part as follows: "Unless the By-laws shall specially reserve any and all of the duties to the members, it shall be the special duty of the directors: "(1) To act upon all applications for membership and the expulsion of m.embers." Section 21 reads as follows: "At any regular or called meeting of the members, by a two-thirds vote of those present, the members may expel from the corporation any member thereof. A member may withdraw from a Credit Union and a non-member may withdraw deposits, as hereinafter provided, by filing a written notice of such intention. All deposits of an expelled or withdrawing member, with any interest
435
accrued, shall be paid to such member, subject to sixty days notice, and after deducting any amounts due to the corporation by such members, said expelled or withdrawing member shall have no further right in said Credit Union or to any of its benefits, but such expulsion or withdrawal shall not operate to relieve said member.s from any remaining liability to the corporation."
All of the above quoted provisions indicate that each credit union has complete control over the matter of membership. Under the Act, it seems that eight persons could form a credit union and limit the membership to the original eight incorporators. Therefore, it would seem that eight wholesalers could form a credit union and limit the membership to themselves.
I am unable to read into the Act only the intent and purpose that you speak of in the third paragraph of your letter. It may well be that such was the intent of the person or persons who introduced the Act in the Legislature, but no such intent or purpose is expressed anywhere in the Act itself. I realize that the intent of the General Assembly is the prime object in construing legislation. However, this intent is determined by the language of the Act itself unless such language is ambiguous and defiant of construction. This does not seem to be the case in the Act in question. The language is clear and it is my opinion that even though the intent contained in your letter should be of primary importance, this still would not exclude all other intents and purposes.
Section 3 of the Act reads in part as follows: "The duplicate set of By-laws shall be transmitted by the Secretary of State to the Superintendent of Banks, who shall promptly consider same, and, after making such changes therein, with consent of petitioner8, not inconsistent with this Act as he may deem necessary, in writing approve same, if he is satisfied that the proposed field of operation is favorable to the success of said corporation, and that the standing of the proposed incorporators is such as to give assurance that its affairs will be properly administered." This is the only language contained in the Act which might possibly give the Superintendent of Banks the power to decline the application. It is my opinion that if the application is in order and is not inconsistent with the terms of the Act, then the Superintendent of Banks cannot arbitrarily decline the application. I am of the opinion that the application in question is not inconsistent with the terms of the Act for the reason stated in the second paragraph of your letter. I am of the further opinion that the Superintendent of Banks would not be within his legal right in declining the application upon the grounds stated in the fourth paragraph of your letter.
BANKS AND BANKING-Deposits The State Depository Act is constitutional as the deposit by the State of funds does not in any way pledge the credit of the State.
May 23, 1949
Hon. Herman E. Talmadge, Governor State Capitol
I am pleased to acknowledge your letter of May 16th, in which you request an official opinion as to the constitutionality of the State Depository Act, (Ga. L. 1949, pp. 13-14) and specifically whether or not the said Act violates
436
Section 2-5604 of the Constitution which prohibits the credit of the State from being pledged or loaned to any individual, company, corporation or association.
The pertinent provisions of the State Depository Act are as follows: "Section 1. A State Depository Board (hereinafter called the Board) is hereby created, consisting of the Governor, the Comptroller-General, and the Treasurer; a majority of whom shall constitute a quorum, and the acts of a majority of whom shall be the acts of the Board." "Section 2. The Board may name and appoint as depositories of StateJ funds, solvent banks and trust companies. . . ." "Section 3. Depositories appointed by the Board shall serve only during the pleasure of the Board and without definite term. . . . Depositories shall receive no salary or fees from the State." "Section 4. The Board shall determine (and may from time to time change) (a) the maximum amount of States' moneys which the State Treasurer may deposit in a particular depository; and (b) the maximum and minimum proportion of the State funds which the Treasurer may maintain in a particular depository; provided depositories shall give security for State deposits as now required by law." "Section 5. The Board shall exercise an absolute discretion in performing its duties under the provisions of this Act." "Section 6. The State TTeasurer shall hereafter deposit all State moneys in compliance with the determination of the Board as to the maximum amount and proportion of deposits in particular depositories." Sections 7 and 8 relating to existing depositories and the repeal of certain specifi(:d laws are not quoted, since they are not pertinent to the constitutional question under discussion. Section 2-5604 of the State Constitution provides: "The credit of the State shall not be pledged or loaned to any individual, company, corporation or association and the State shall not become a joint owner or stockholder in or with, any individual, company, association or corporation." Your inquiry resolves itself into the question of whether the deposit of State funds in a bank previously selected as a State depository is a pledge of th<J credit of the State in violation of the above provision of the Constitution. At the outset, it should be noted that the relationship of the State as a depositor in a State depository is altogether different from the ordinary legal relationship existing between a bank and an individual depositor of such an institution. There are many special statutes in addition to the State Depository Act of 1949 relating to the deposit of public funds of this State in State depositories. For instance, Section 100-104 of the Code provides in part as follows: "Bonds of depositories; recording; amount, evidence. Said depositories shall, before entering upon the discharge of their duties, by their proper officers, execute bonds, with good and sufficient securities to be fixed and approved by the Governor. . . . In determining the amount of the bond to be givbn by a depository under this section the Governor shall so fix the same as to make it not less than the amount of money to be intrusted to said depository, and in no case shall a larger amount of money be deposited in any depository than the amount of the bond, and the Governor may at any time require additional bond, if necessary, to cover fully the amount deposited or intended to be deposited in such bank."
437
There are many other statutes dealing with State depositories, but the above cited provision will serve to illustrate the legal proposition that such depositories are instrumentalities or agencies of the State for the purpose of keeping such public funds which may be deposited therein. In Colquitt, Governor, vs. Si:mpson and Ledbetter, 72 Ga. at page 501, the Supreme Court of this State held as follows:
"3. State depositories are not public officers, but are instruments or agencies to keep the public funds. They are sui generis and sui juris, and stand on their own law, embodied in the Act of 1879."
It seems clear that while such State depositories are not official public officers of the State, they are nevertheless instrumentalities or agencies of the State, made so by law, for the purpose of keeping securely any public funds which may be entrusted to their custody.
The general rule of law in reference to this question is stated in 42 Am. Jur., Section 8, as follows:
"Inasmuch as a general deposit creates the relation of debtor and creditor between the bank and the depositing officer, or, according to some courts, between the depository and the state, some courts take the view that such a deposit constitutes a loan to the bank or an investment of the money deposited, in violation of a statute forbidding public officers to lend the funds in their hands, but according to the decid,ed weight o.f authority, the authorized pla.cing of public funds in a general deposit ac.count for safekeeping does not constitute a loan within the meaning of a constitution,al or statutory provision again.st ~ending public credit, even though the bank agrees to pay in.terest on d.aily .ha.lan,ces, if the de.posit is a demand d,eposit without time limit or other conditions as to paym.ent, and i.s made in the usual course of husin,ess for the sake of convenience and not for the purpose of aiding the bank.'' (Emphasis supplied.)
It should also be noted that under Section 100-111 of the Code, "depositories shall hold all funds received by them for and on account of the State, subject to the check or order of the State Treasurer." The State is at liberty at any time and without previous notice to withdraw any funds which may be so deposited.
In view of the above provisions of law, I am of the opinion that the State Depository Act of 1949 does not in any way pledge the credit of the State in violation of the prohibition contained in the Constitution.
The provision of law which permits the State Depository Board to determine the maximum and minimum proportion of State funds which the Treasurm can maintain in a particular depository does not render the Act unconstitutional in my opinion. This is a flexible provision, and the Board can from time to time vary and change these amounts in its discretion. The entire amount of the deposit is always subject to the control of the State, and as far as a State depository is concerned, there is no assurance that any given amount or any amount at all will be left on deposit in the future. Of course it is the duty of the State Treasurer to comply with the provisions of the State Depository Act and to abide by the instruction of the State Depository Board as provided for in the statute.
The question now under discussion should not be .confused with cases such as Wiley vs. The City of Sparta, 154 Ga. p. 1, where the city officials lacked sufficient legal authority to authorize them to deposit certain bonds in a par-
438
ticular bank for safekeeping. The State Depository Act, in contrast to the ordinance of the City of Sparta, grants ample authority to the State Depository Board to make deposits. These provisions of the said Act are, in my opinion, valid and constitutional.
In the case of Pal"k, Trea.surer, vs. Candler, Governor, 113 Ga. p. 647, the Supreme Court of Georgia held as follows:
"An Act of the General AssEombly will never be so construed as to make it violative of the Constitution, unless it is plain and manifest from the terms of the Act that a construction having that effect was intended by the General Assembly; and when an Act is capable of two constructions, one making it violative of the Constitution, and the other making it consonant therewith, the latter construction must be adopted."
In view of the above statutory rule of construction, we must assume that the Board, under the provisions of Section 4 of the Act, in determining the maximum and minimum proportion of State funds which the Treasurer may deposit in a particular depository will do so in a reasonable manner and in a way that will be beneficial to the State. Should a minimum proportion be fixed, it must be done for the sole purpose of rendering a benefit to the State government. If a minimum should be fixed for the purpose of guaranteeing that a certain amount would be left on deposit with the State Depository for a fixed time, then such application of Section 4 (b) of the Act would render the same unconstitutional as a pledge of the credit of the State to such a banking institution. As stated above however, for the purposes of this opinion, it must be assumed that if a minimum should be fixed by the Board, the same would continually and without reservation be subject to change or modification by the Board. This being true, a State depository would have no guarantee at all by virtue of the fact that a minimum deposit might be fixed by the Board. For this reason, it can readily be demonstrated that no benefit or advantage at all could flow to the State depository under these circ*mstances. It would therefore necessarily follow that the credit of the State would not be pledged in any way by such fluid and flexible action on the part of the Board.
In conclusion, I am therefore of the opinion that the State Depository Act of 1949 is valid and constitutional, and that the State Treasurer is required to deposit all State moneys in compliance with the determination of the Board as prescribed by the terms of this Act.
BANKS AND BANKING-Deposits (Unofficial) Banks selected as depositories of public funds must protect such deposits by bond or deposit of securities in escrow.
June 27, 1949
Honorable Herbert Tabor Your letter of June 15, requesting an opm10n as to whether public funds,
including State, County, County and City schools, etc. deposited in banks must be protected by depository bonds or collateral placed in escrow and what, if any, amount of such protection is fixed by law, received.
In this connection, I wish to call your attention to Section 23-1018 of the Code of Georgia, which provides as follows:
"Any depository of State funds so selected by the county treasurer to be
439
a depository of the county funds shall, in addition to the bond given to the State as security for the money of the State depositEod in said bank, give to the county treasurer a bond in an amount sufficient to protect him from any loss, which bond shall be payable to him, and shall be conditioned to fully account to him for all county moneys that may be deposited by him as such treasurer under thEo terms of this law."
I wish to also call your attention to Sections 89-810, 89-811, and 89-812 of the Code of Georgia, as follows:
"It shall be the duty of every collecting officer and every officer to hold public money, upon any money belonging to any public body coming into his hands, promptly to deposit the same in bank or depository as hereinafter stated. All funds belonging to the State or any of its bureaus, commissions, boards, andjor departments shall be deposited in some designated State depository."
"The county authorities shall designate one or more solvent banks as depositories of all county moneys and moneys belonging to the school funds of the county, and of school districts therein, and of other districts therein organized for any purpose; and if the county authorities shall not have provided for such a depository, the county board of education or the trustees of any school district or the proper authorities having supervision over any other public fund may designate such a depository as to their funds; and if there be no applicable depository selected, the officer collecting or holding any public funds may select a depository."
"The proper authorities shall require the depository to give bond or make deposits of securities in trust to secure such deposits as may be made in it. Any bank in this State is authorizEod to give such bond andjor to secure deposits of public funds by deposits of securities; and the proper authorities are authorized to make contracts with depositories as to interest or compensation of the depository."
You can see from the above quoted Sections of the Code of Georgia that when a bank has beEon designated by the proper authorities as a depository for public funds, such bank is required to give bond or make deposit of securities in trust to secure such deposits as may be made in it.
Since my official authority is restricted by law to legal matters relating to the State Government my views in this lettEor must be accepted as unofficial and personal.
BANKS AND BANKING-Tax-Intangibles Morris Plan Bank not exempt from intangible taxes under Code Sec. 92-158, by reason of inability of Banking Department to enforce its recommendations.
June 20, 1949
Honorable W. Harvey Atkinson, Director Property & License Tax Unit Department of Revenue
I am pleased to acknowledge your letter in which you requested an opm10n relative to whether the Morris Plan Bank of Savannah, Georgia is liable for intangible taxes.
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It is noted that the Bank takes the position that they are protected from intangible taxes by Code Section 92-158, which says:
" . . . associations organiz:d under the laws of this State, which accept funds for deposit and submit to examinations by the superintendent of banks of this State, shall be taxed as heretofore provided by law. Neither such banks nor such savings and loan companies or associations nor their assets shall be subJect to the provisions of this law: ..."
Therefore, it appears to me that under this Code Section the matter becomes a question of fact as to whethE:r the bank so qualifies.
I have discussed this bank's operation with Mr. 0. G. Jackson, Assistant Superintendent of Banks for the State, and he informs me that his department has not examined the Morris Plan Bank of Savannah during the last several years for the r:ason that the law provides that they could make an examination, but they have no power to enforce their recommendations.
Since exemptions are strictly construed, coupled with the fact that this banking operation is not on all fours with the provisions set out in the exemption, it is my opm10n that the Morris Plan Bank of Savannah is liable for intangible tax.
BANKS & BANKING--Loans, li.mitation on The limitation in Code Sec. 13-2013 on bank loan~> to one person does not apply to loans on automobiles up to 80% of the market value.
March 23, 1949
Honorable Augustus P. Persons Superintendent of Banks
Pursuant to your request of March 14, 1949, I have car:fully reviewed the opinion regarding limits in amount of loans that may be made by banks on automobile purchase money notes, dated April 12, 1941 to Honorable 0. G. Jackson, Assistant Superintendent of Banks.
It is my opinion that the conclusions reached therein by the Law Department is a correct interpretation of SE:ction 13-2013 of the Gode of Georgia.
The material portions of Section 13-2013 of the Code of 1933 as amended may be stated as follows:
"No bank shall be allowed to lend to any one person, firm, or corporation more than 20 per cent of its capital and unimpaired surplus; and no loan shall be made in excess of 10 per cent of the capital and surplus, except upon good collateral or other ample security and with th: approval of a majority of the directors, or a committee of the board of directors authorized to act, which approval shall be evidenced by the written signature of said directors or the members of said committee. . . . Provided, that the limit of loans herein fixed shall not app,ly to bona fide loans made upon the security of agricultural, manufactured, or industrial products or live stock having a market value and for which there is ready sale in the open market, title to which by appropriate transfer shall be taken in the name of the bank, and which shall be secur:d by insurance against loss by fire, with policies made payable to the bank, where no more than 80 per cent. of the market value of such products shall be loaned or advanced thereon. In all such cases .a margin of 20 per cent. between the amount of the loan and the market value of the products shall at all times
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be maintained . . . ; and the bank shall have the right to call for additional collateral whe:n the difference between the market value and the amount loaned shall be less than 20 per cent., and in the event of the faliure to comply with such demands, to immediately sell all or any part of such products in the open market and pay the amount of the loan and the e:xpenses of sale, and ,i:e b_:~ ance to the borrower; . . ."
Originally under the old law there was no limitation on the amount of loans to be made by a bank to any one person. The Act of 1919 (Ga. L. 1919, p. 196) limited the amount to 30 per cent of the capital and unimpairtd surplus. The Act of 1922 (Ga. L. 1922, p. 68) amended the 1919 Act and placed the limit of a loan to any one person at 20 per cent of the capital and unimpaired surplus and provided that no loan should be made in excess of 10 per cent of the capital and surplus, except upon good collateral or other ample security, such loans to be approved by a majority of the Directors, or a committee of the Board of Directors authorized to act.
In the passage of the Act which contained Section 13-2013 of the Code the General Assembly added a proviso excepting from the limits of the loans bona fide loans made upon the security of agricultural, manufactured, or industrial products or live stock. The general purpose of a proviso is to except the clause covered by it from provisions of a statute:, or to qualify the operation of a statute. See Geo.rgia Railroad and Banking Compa.ny v. James M. Smith, et al., 32 L. Ed. 377, 128 U. S. 174.
Loans made by a bank on manufactured or industrial products where no more than 80 per cent of the market value of such products are loaned do not count in considering the loan under the limit of 20 per cent of the capital and unimpaired surplus of the bank as providtd in the main portion of Section 13-2013 of the Code.
BANKS AND BANKING-Negotiable Instruments In the event of payment by a bank to an unauthorized person of a check properly drawn to the Supplier by the State, the State is under no liability to the supplier.
May 3, 1949 Hon. John M. Mann, Chief Engineer Department of StatE: Parks
This will acknowledge receipt of your letter dated April 29, 1949, in which you ask for an opinion on a check No. 424 dated January 6', 1949, payable to the Sound Equipment Company in the amount of $255.60. You further state that a Mr. Pippen brought in an exact duplicate of the original invoice and represented himself as being in Atlanta for the purpose of expediting the payment of this account, and further represe:nted himself as being the owner of the Savannah Sound Equipment Company.
It is my opinion that there is no liability as far as the State is coneerned, inasmuch as this check was made payable to the Savannah Sound Equipment Company and drawn on the main office of the Fulton National Bank of Atlanta. There may be liability on the part of the Bank in not asce:rtaining before cashing this check the true owner of said business at that time.
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BANKS AND BANKING-Negotiable Instruments (Unofficial) The remedy of an endorser on a check on which payment is stopped is a civil suit against the maker.
September 14, 1949 Mr. W. J. Bargeron
Your letter of September 12th in which you ask for an opinion regarding your legal rights as endorser of a check upon which payment has been stopped has been referred to me for reply in the absence of the Attorney General, who is away from his office.
In answer thereto, I will first give you the legal definition of a check as contained in Bouvier's Law Dictionary, as follows:
"Check. A written order or request, addressed to a bank or persons carrying on the business of banking, by a party having money in their hands, desiring them to pay, on presentment, to a person therein named or bearer, or to such person or order, a named sum of money."
You will note that a check is a mere order to pay and is subject to payment being stopped for any legal reason that it should not be paid. However, the maker of a check cannot avail himself of any defense that he might have against the original payee in order to defeat payment of a check that is in the possession of a bona fide holder or bearer for value. Your remedy to enforce thl'; collection of a check, as described in your letter, would be a civil suit against the maker of the check.
The Attorney General is prohibited by law from rendering official opinions to anyone except State officials, and you will please treat this letter as purely personal and unofficial as a member of his staff.
BANKS AND BANKING-Officers (UnofficiaJl) A bank may not reduce or increase the number of .its directors at its annual stockholders meeting unless notice of intention so to do is included in notice of meeting.
July 26, 1949 Ron. Carl K. Nelson Attorney at Law
I am pleased to acknowledge your recent letter in which you ask whether or not at an annual stockholders' meeting the number of stockholders of a bank can be reduced from six to five when notice of the intention to make such a reduction was not given in the notice of the' annual meeting.
Of course you understand that under the law, I cannot give you an official opinion on this question, since the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the operation of the State government. This letter is therefore being sent purely as a matter of information, and is not binding upon you, the stockholders, directors or anyone else. It is always a pleasure for me to cite provisions of law which may be applicable in a given situation.
Your inquiry is answered by Section 13-2001 of the Supplement to the Code, which provides as follows:
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"The affairs of each bank shall be managed by a board of not less than three nor more than 25 dirE:ctors who shall be elected by the stockholders at a meeting to be held at any time before the bank is authorized by the Superintendent of Banks to commence the business of banking, and afterwards at meetings to be held annually at such time as may be fixed by the bylaws of the bank. The directors shall hold office for onE: year and until their successors are elected and have qualified. Vacancies occurring in the intervals between elections shall be filled by the board of directors. A bank, at any annual meeting of the stockholders for the election of directors, provided notice thereof be given in the notice of the annuaJI meeting, may, by a majority vote of all the stockholders of such bank, fix or change by resolution the number of directors, provided the number of directors shall not be less than three nor more than 25, which number when so fixed shall be the lawful number of directors of such bank until again changed in like manner. Ctrtified copies of all resolutions fixing or changing the number of directors under this section shall be immedi~ ately filed with the Superintendent of Banks." (Emphasis supplied)
You will note that the above provision of the statute which I have emphasized, applies directly to the election of directors, and requires that notice "thereof be givE:n in the notice of the annual meeting."
BANKS AND BANKING-Savings and Loan Associations (Unofficial) There is no statutory authority for purchase by State building and loan associations of the stock of the Federal Savings & Loan Insurance Corporation, and it is within the discretion of the Secretary of State to permit such purchases if permitted by the charter.
March 8, 1949
Mr. John L. Conner, PrE:sident Southern Federal Savings and Loan Association
In further answer to your letter of February 24, in regard to the telegram from the Executive Manager of the National Savings and Loan League, I am pleased to give you this additional information.
The tE:legram asked that you obtain a written ruling from the State supervisory authority, supported if possible by the Attorney General's opinion, as to whether State building and loan associations have statutory authority to purchasE: stock of the Federal Savings and Loan Insurance Corporation, and in absence of such authority, would the Supervisor approve such investment by State associations.
As you know, the SecrE:tary of State, the Honorable Ben W. Fortson, has general supervision and control over all State chartered building and loan associations. (Georgia Code Annotated Supplement, Section 16-408).
And further, by Georgia Code Annotated Supplement, Section 16-415, the Secretary of State may make all such reasonablE: rules and regulations governing the operation of State chartered associations, provided the same are not in conflict with any of the provisions of Chapter 16-4 of said Code; such rules and regulations shall provide reasonable bonds for all officers and employees of State chartered associations handling monE:ys; reasonable limitations on the type of real estate on which funds may be loaned and the percentage of value to be loaned; and the Secretary of State shall have powtr to
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make all such other reasonable rules and regulations as may be necessary or proper to the protection of all funds invested by thEo public in State chartered associations.
While I find no statutory provisions specifically authorizing State building and loan associations to purchase stock of the Federal Savings and Loan Insurance Corporation, I find no provision prohibiting such purchase, and in view of the two Sections of the Georgia Code pointed out to you above, I am of the opinion that it is within the discretion of the SEocretary of State to permit State chartered building and loan associations, if not so prEovented by their respective charters, to purchase stock of the Federal Savings and Loan Insurance Corporation.
In regard, therefore, to the latter part of the telegram as to whether or not, in the absence of &xpress statutory authority, the Supervisor (the Secretary of State) would approve the investment by the State associations in the stock of the Federal Savings and Loan Insurance Corporation, the answer would depend on the Secretary of State as Supervisor, and I suggest that you contact him directly for a ruling on this matter.
In this regard I want to call your attention to the fact that under the rules and rEogulations for the State building and loan associations, adopted by the Secretary of State on July 8, 1938, pursuant to Code Section 16-415, pointed out above, it is provided in subsection 2 of Rule 6 headed "Investrrients" that an association shall have power to invest without limit in securities which are obligations of the Federal Home Loan Banks and in obligations of the Federal Savings and Loan Insurance Corporation. If this ruling of the Secretary is still in force and effeet (and I understand it is at this writing), and if by the phrase, "obligations of the Federal Savings and Loan Insurance Corporation," the Secretary intends to include stock of such corporation, then it would seem that the State associations do have authority to make such an investment.
It might be of some benefit to you to call your attention to Georgia Code Annotated Supplement, Section 16-437, which for the benefit of clarity I shail paraphrase, as follows: Shares of a State association shall be legal invE:stments up to $5,000.00 in each State institution for the funds of fiduciaries, insurance companies, credit unions, fraternal benefit societies, etc., provided that thEo institution (State ,association) in whose shares the funds are invested is insured by the Federal Savings and Loan Insurance Corporation pursuant to the provisions of Title 4 of the National Housing Act of the Congress of the United Stat&s.
The foregoing seems to mean that if the Federal Savings and Loan Insurance Corporation will insure a State association which has invested in the said Federal Savings and Loan Insurance Corporation, then the shares of such State association would be legal investments up to $5,000.00 for the funds as set out above. And, as a result of this, therefore, the final answer to your question might possibly rest on th& question as to whether or not the Federal Savings and Loan Insurance Corporation desires to and can insure State associations which have stock in the said Federal Corporation and, thus, keep the shares of said State institutions legal investments for all of the above outlined funds.
Based on the Code Sections and Rule 6, Section 2, of the Secretary of State which I have cited above, I am inclined to bE:lieve that on your request the Secretary of State will give you specific written approval of investments
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by State institutions in the stock of the Federal Savings and Loan Insurance Corporation. I do not believe that it will be necessary, therefore, for me to prepare a written re:quest for an official opinion as I had originally intended to do. While the opinions herein must then be considered as just my personal views and not in anywise binding, I believe that this, together with such written approval as I feel sure you will be able to obtain from the Secretary of State, will be sufficient for your purposes.
BANKS AND BANKING-Small Loan Companies (Unofficial) Small loan companies may charge interest not in excess of llh percent a month.
January 11, 1949
Mr. Arthur Sams In reply to your telegram of January lOth in which you asked: "What
is the:' maximum that can be charged on a small loan?", the law provides under Section 57-101 the legal rate of interest, as follows:
"Legal rate of interest; rate higher than eight per centum forbidden.The legal rate of interest shall be seven per centum per annum, where the rate: per centum is not named in the contract, and any higher rate must be specified in writing, but in no eve:nt shall any person, company, or corporation reserve, charge, or take for any loan or advance of money, or forbearance to enforce the collection of any sum of money, any rate of interest greater than eight per centum per annum, either directly or indirectly by way of commission for advances, discount, exchange, or by any contract or contrivance or de:vice whatever.''
The legal rate of interest for a small loan business is provided under Section 25-301.
"License to do business required. Rate of interest on loans.-No person, partnership, or corporation shall engage in the business of making loans of money, credit, goods or things in action in the amount or to the value of $300 or less, and charge, contract for, or rece:ive a greater rate of interest than eight per centum per annum therefor, except as authorized by this Chapter, and without first obtaining a license from the Superintendent of Banks.''
If a person, partnership or corporation has been license:d to operate a small loan business, as provided under Chapter 25-3 of the Code of Georgia of 1933, small loans may be made in compliance with Section 25-313, which provides as follows:
"Amount of loans. Interest and charges.-Every person, partne:rship and corporation licensed hereunder may loan any sum of money not exceeding in amount the sum of $300 and may charge, contract for and receive thereon interest at a rate not to exceed one and one-half per centum per month. Interest shall not be: payable in advance or compounded and shall be computed on unpaid balances. In addition to the interest herein provided for, no further or 'other charge, or amount whatsoever for any examination, service, brokerage, commission or other thing, or otherwise, shall be directly or indirectly charged, contracted for, or receive:d, except the lawful fees, if any, actually and necessarily paid out by the licensee to any public officer for filing or recording in any public office any instrument securing the loan, which fees may be col-
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lected when the loan is made or at any time thereafter. If any interest or charges in excess of those permitted by this Chapter shall be charged, contracted for or received, the contract of loan shall be null and void and the licensee shall have no right to collect or receive any principal, interest or charges whatsoever. No person shall owe any licensee, as such, at any time more than $300 for principal."
From your telegram, I would think that you are interested in the interest rate on a small personal loan, however, I am quoting you the law as relates to interest charged by small loan businesses to be sure that you have the provisions of law to meet your situation.
CONSTITUTION OF STATE-Amendments (U,wffici.al) The provision of the Georgia Constitution of 1877 that amendments submitted to electors at the same time should be susceptible of being voted on separately was satisfied by the submission of the Constitution of 1945 as a single amendment, striking the old Constitution and substituting the new Constitution, each in its entirety.
January 31, 1949
Honorable John M. Daniel Attorney General State of South Carolina
I have your letter of January 26th, in which you request information as to how the Georgia Constitution of 1945 was enacted as one amendment to the old Georgia Constitution.
As you have pointed out, the Georgia Constitution of 1877 did contain a provision that
" ... When more than one amendment is submitted at the same time (to the electors) they shall be so submitted as to enable the electors to vote on each amendment separately." (Constitution of the State of Georgia of 1877, Art. 13, Sec. 1, Par. 1; Georgia Code, Sec. 2-8601; Constitution of the State of Georgia of 1945, Art. 13, Sec. 1, Par. 1; Georgia Code Ann. Sec. 2-8101.)
The Constitution of 1945 was submitted to the electors as one single amendment to amend the Constitution of 1877 by, in effect, striking it in its entirety and by inserting "in lieu thereof" the document which became the Constitution of 1945.
This method and its potential conflict with the provisions of the Constitution above quoted did not go unchallenged. In Wheeler vs. Board of Trustees of Fargo Consolidated School District et al, 200 Ga. 323, 37 S.E. (2d) 322, and again in McKnight v. City of Decatur et al, 200 Ga. 611, 37 S.E. (2) 915, the exact question which you have propounded was passed on by the Supreme Court of Georgia.
In the first of those cases the Court flatly held that the instrument purporting to amend the old Constitution was not an amendment, but was in fact a new Constitution. The Court then in substance held that the people, by voting to adopt the new Constitution, had expressed their will and that the Court would not set aside such an expression.
I think it may fairly be observed with all due respect to the Supreme Court that the question you have propounded has not been squarely answered,
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at least not in. a technical or legalistic sense. However, if the opm1on is considered from the standpoint of the broader principles of jurisprudence upon which the court relied, I think the decision is well founded.
I will not attempt in this letter to restate the exact terms of the court's reasoning, since you will of course want to construe the opinions themselves.
CONTRACTS-Gaming Contracts (Unofficial) Gaming contracts are illegal and money paid pursuant thereto may be recovered by the loser within six months, or by the loser for the joint use of himself and the Education Fund within four years.
December 28, 1949 Mr. Joseph E. O'Donnell
I am pleased to acknowledge receipt of your letter of December 21st requesting information concerning the legality of checks and notes given for gambling debts. Under the Constitution and laws of this State the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and the heads of the various State departments. However, it is a pleasure for me to refer you to Section 20-505 of the 1933 Georgia Code Annotated, which is applicable to your question:
"Gaming contracts are void, and all evidences of debt, except negotiable instruments in the hands of holders in due course, or incumbrances or liens on property, executed upon a gaming consideration, are void in the hands of any person. Money paid or property delivered up, upon such consideration, may be recovered back from the winner by the loser, if he shall sue for the same in six months after the loss, and after the expiration of that time it may be sued for by any person, at any time within four years, for the joint use of himself and the educational fund of the county.''
CONTRACTS-Timber Rights (Unofficial) A grantee of timber rights who also acquires surface rights in the land is a lessee.
January 20, 1949 Honorable Ben T. Willoughby Attorney, Clinch County
Pursuant to our recent conversation l'elative to whether the instrumen-t executed by the Superior Pine Products Company to the St. Regis Paper Company is a contract or a lease, I have carefully studied this instrument and have the following observations to make on it for you.
Of course, you realize that the Attorney General is prohibited by law from rendering official opinions to any one except the Governor and the heads of the various departments of the State, and my comments are of a personal nature and are not binding on anyone.
From a tax assessor's viewpoint, I readily understand the importance in determining whether this instrument is a lease or a contract, as it is my Qpinion that lease holds for timber are real estate and are taxable by the State and County under Code Section 92-104. A careful study of the law reveals that
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where a purchaser has a right to use the land and make improvements thereon, or has the right to exercise husbandry over it, that under those circ*mstances the instrument is a lease.
In the case of Midyette vs. Grubbs, 145 N.C. 85; 58 S.E. 795, the Supreme Court of North Carolina held:
"The interest of the grantee of a contract for sale of growing timber to be removed within a period of years is a determinable fee in rE:al estate. . . ."
For your further reference on this point, please see Strauss vs. Berger, 13 LRA (NS) 278, 220 Pac. 367, 69 Atl. 18; McRae vs. Stillwell, 111 Ga. 65, 3El' S.E. 604, 55 LRA 513.
In view of the above provisions of law, let me now make an analytical study of this instrument.
Paragraph 5 (a), page 6 states that the purchaser agrees to manage and operate said lands and the timber thereon in accordance with good forestry practices from time to time included, but not limited, to the restocking of the areas cut or burned.
Paragraph 9, page 10 provides that the purchaser agrees that in addition to all amounts payable . . . purchaser shall also pay all costs, charges, and expenses of purchaser's operation and improvements of said land and the timber thereon . . . and all ad valorem taxes and other taxes assessed against said land or the timber thereon or the improvements, structures and equipment now on said lands or hereafter placed therE:on by the purchaser.
Paragraph 10, page 11 gives the purchaser the right to use, occupy and repair all existing improvements, buildings and structures now upon said land owned by seller, except those excluded by the seller.
Paragraph 11, page 12 provides that the purchaser may usE: existing structures and all surface rights upon said land needed from time to time by purchaser in development of forest lands, as contemplated, including free and unlimited logging privileges, grazing rights, game management, right of ingress and egress for purchaser's agents and employees and the right to build and operate railroads, dirt roads, canals and other facilities on and over said lands.
You will note from the various provisions referred to above that the instrument definitely grants virtually the unlimited use of the surface rights of the land as a part of the consideration of the sale of the timber specified in the instrument and in return the purchaser assumes the liability for the payment of ad valorem taxes on the land, including the timber.
It is my unofficial opinion that by his agreement the purchaser has made himself liable for taxes which would otherwise be normally payable by the owner of the land, and in addition the rights he acquires over the land for the removal of the timber thereon constitutes a lease on the land, and that this lease itself has a definite ascertainable market value and the purchaser is specifically liable for the tax thereon under Code Section 92-114. It is my further view that that portion of the instrument which declares that the title to the timber shall not pass until the trees are severed from the land only emphasizes the fact that the instrument is a lease for the use of the property and by so doing he has subjected himself to additional tax as an owner of a lease hold.
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CONTRACTS-Usury (Unofficial)
WherE: a loan contract providing for 3% o/o interest per month is executed and payments are to be made outside the State to a company operating in the State through the mails, the principal, but not the interest, may be recovered.
March 3, 1949 Honorable James H. Huling
Your letter of Ftbruary 27th received in which you ask if a loan company with office out of the State of Georgia, operating in the State through the United States mail, can charge above the legal rate of interest prevailing in the State of Georgia.
As a matter of information, I refer you to the case of Folaom v. Conti nental Adjustment Corporatio.n, 48 Ga. App., 435, in which thE: Court held:
"A wholly foreign contract was made by the note sued on in this case, which was executed and to be performed in another State, without participation by any person in this State in the making of the loan for which the note was given; and therefore the 'small-loan act' of this State does not apply to it.
"The interest provided for in the note,-3% per cent. a month,-not coming within the 'small-loan act' of this State, and being more than five times the rate authoriztd by the general Georgia statute, is, as a matter of law, unreasonable and unconscionable, and therefore the contract as to interest is incapable of enforcement by the courts of this State."
I gather from the information in your letter that the contract referred to was executed and that payments were to be made at the headquarters of this company in Duluth, Minnesota. If this be true, it is my opinion, under rulings of this case, that the rights of the parties would be determinbd by the common law, and that this would not come under the "small-loan act", and that the principal of this obligation would be collectible by law, but that the interest would not.
As the Attorney General is prohibited by law from rendering official opinions to persons other than the Governor and heads of the various Departments of State, this letter must be considered as merely my personal views on this subject. However, it is a pleasure for me to refer you to the provisions of
law applicable to your question as a matter of information.
CORONERS-De Facto (Un.official) The duly elected coroner having removed from the county without having qualified, the then incumbent may continue to discharge the duties of coroner.
January 31, 1949 Miss Emily B. Varnedoe, Ordinary Mcintosh County
I am pleased to acknowledge your letter of January 27th, in which you state that thf: person who was elected coroner of your county at the last election has never qualified or taken the oath of office, but has removed from the county and does not desire to qualify for the office. You ask whether or not the person who was previously in office could continue to discharge
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these duties since there appears to be no one who cares to offer for the office. Of course the question presented is one which does not come within the
duties of the office of Attorney General. I cannot give you an official opinion on this question, and it would be my suggestion that you present the matter to your county attorney who is in a position to officially advise you in the premises.
As a matter of information, I am pleased to refer you to Section 89-105 of the Code which provides as follows:
"All officers of this State shall reside therein, at such places as are designated by law, and discharge the duties of their offices until their successors are commis,sioned and qualified; and all officers whose certificates to records or other papers are admissible in evidence in any court in this State must have and keep an official seal.'' (Emphasis supplied)
CORONERS-Inquests (UnoUicial) Inquests in cases of violent death, etc., in presence of witnesses will be made only upon affidavit of facts raising suspicion of foul play, affiant to pay costs of inquest and to be reimbursed upon arrest of guilty person.
September 1, 1949 Honorable J. R. Proctor, Coroner Brantley County
I am pleased to acknowledge your letter of August 26, 1949 concerning the fees allowed Coroners.
Under the law I can only give opmJOns to the Governor and to the heads of various departments of the State in matters in which the State is involved.
The question asked by you is one which comes within the jurisdiction of your County Attorn"Y Since you are a County officer, his ruling would be official and binding in the matter.
Section 21-203 of the Code of Georgia provides: "No inque,st shall be held over any dead body when the cause of the death was violence, or ac,ciden.t, or act of God, in the presen,ce of witn.esses, unless some person makes affidavit of facts raising a suspicion of foul play, when an inquest shall be had, but at the expense of the party making the affidavit. Upon such inquest, if it should appear that the death was caused by violence and foul play, and the person guilty of the act is arrested, the person paying the cost of the inquest shall be repaid by the county treasurer upon an order from the judge of the superior court of the county." (Emphasis supplied) In the case of Herndon vs. Jones County, 18 Ga. App. 523, the Court of Appeals of Georgia held that "witnesses" as used in the above Code Section means one witness or more. Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
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CORPORATIONS-Capital stock A debenture is not capital stock and is therefore not includible in the computation of the occupation tax.
December 19, 1949 Honorable W. Harvey Atkinson, DirEoctor Property & License Tax Unit Department of Revenue
I am pleased to acknowledge your letter of recent date relative to what constitutes Capital Stock within the meaning of Section 92-301.101, which imposes the occupational tax on domestic corporations.
You particularly want to know whether securitiEos in the nature of debenture bonds are included along with the other capital stock.
Ballentine's Law Dictionary defines "debenture" as, "An instrument, generally under seal, for the repayment of money lent; usually if not exclusively used of obligations of corporations or large moneyed copartnerships, issued in a form convenient to be bought and sold as investments".
Ballentine's Dictionary, on page 1236, defines "stock'", "As the term is used in connection with corporations, it means the capital of the corporations, whether it be common stock or preferred stock. The stockholder's certificate of stock is merely the evidence of the amount which he has contributed to or ventured in the enterprise."
After a close scrutiny of the debenture preference stock form enclosed with your letter, it is my opinion that this would merely be a debenture and would not be considered as capital stock to be included in the computation of the occupation tax. This debenture simply does not have any of the attributes of capital stock.
CORPORATIONS-Foreign (Unofficial) The requirement that a foreign corporation owning more than 5,000 acrEos of land in Georgia must incorporate in this States does not apply to leases of mineral rights.
March 25, 1949 Mr. A. G. Chambers Assistant Secretary Treasurer V each-May-Wilson, Inc.
I am pleased to acknowledge your letter of March 10, 1949 in which you requested an opinion as to whether a foreign corporation that leases more than 5,000 acres of land is required to domesticate in Georgia.
I regret that the law prohibits me from rendering official opinions to anyone except the Governor and the various State department heads. Therefore, anything contained herein is purely of a personal nature and is not binding on anyone.
For your information, I quote you herewith Code Section 22-1504, as follows:
"Ownership of land by foreign corporation; mineral rights.-Any foreign corporation claiming to own lands in this State in quantity amounting to as much as 5,000 acres, shall be incorporated by the laws of this State; and on
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its failing to do so, the State will not consent to tht said corporation owning said lands so located in her territory. Any foreign corporation which shall thereafter claim to own land in this State in quantity amounting to 5,000 acres or upwards, shall become incorporated by the laws of this State, and in default thereof this State will not consent that said foreign corporation shall own said lands in her territory; and rio foreign corporation shall own more than 5,000 acres of land ;Xcept upon the condition of becoming a corporation under the laws of this State: Provided, that this section shall not apply to any foreign corporation engaged in the business of lending money on real estate security, nor to any such corporation holding a lien upon real estate to secure the payment of any debt, when said corporation, in ordtr to prevent loss, is compelled to become the purchaser of lands covered by deed or mortgage to secure a loan: and Provided, however, that the benefits and privileges of the foregoing proviso shall not apply to any foreign corporation which does or may lend money in this Stat; at a greater rate of interest than eight per cent. per annum. In estimating the amount of interest charged, there shall be included any and all commissions or fees which may be paid to said company or its duly authorized agents; Provided, however, the prohibition contained in this section shall not prohibit any foreign corporation from owning or claiming to own, oil, gas, sulphur, coal, gold, lead and other minerals, whether of similar or dissimilar character to those enumerated, on, in and under lands in this State aggregating more than 5,000 acres, or any of such minerals or any right or interest thtrein under lease, grant, deed, contract or other form of conveyance or agreement including, but not limited to, royalty interest; overriding royalty interest, payments out of or measured by production thereof, leasehold interest, the right to investigate, explore, prospect, drill, mine, produce, save, receive, take, takt care of, treat, transport by pipeline or otherwise and own such minerals or any of them and the right to use the surface of any land for the purpose of investigating, exploring, prospecting, drilling, mining for, producing, saving, receiving, taking, taking care of, treating, transporting by pipeline or otherwise and owning such minerals, or any of them, and despite the fact that right or interests in such minerals are interests in land, same are excepted from the eff;ct of this section."
CORPORATIONS-Public Utility-Unofficial The Electric Membership Corporation Act does not permit the change of the words "Electric Membership Corporation" in the name of a member to "Electric Membership Cooperative".
October 24, 1949
Honorable O'Donald Mays, Editor Rural Georgia
This will acknowledge receipt of your letter of October 18, 1949, with refere.nce to changing the name of the "F'orsyth County Electric Membership Corporation'' to "Forsyth County Electric Membership Cooperative." The Electric Membership Corporation Act approved March 30, 1937 (Georgia Laws 1937, pages 644, 649) provides, under Section 6, in part, as follows:
"Section 6. Petition or Declaration. Be it further enacted, That (a) the petition or declaration to be filed as hereinbtfore provided shall state:
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" (1) The name of the corporation, which name shall include the words 'Electric Membership Corporation' and the name shall be such as to distinguish it from any other corporation organized and existing under the laws of this State."
Section 24 of said Act provides: "Section 24. Act Complete In Itself. Be it further enacted, That this Act is complete in itself and shall be controlling. The provisions of any other law of this State, except as provided in this Act, shall not apply to a corporation organized under this Act. Under the above provisions of law, Subsection (l) of Section 6 of the Electric Membership Corporation Act must be amended before the corporation above referred to can substitute the word "Cooperative" for the word "Corporation" in its name, which, of course, would be done by an amendment to its charter, as provided in said Act, after the law is amended. Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
CORPORATIONS-Public Utility Returns by public utility corporations of property for purposes of taxation should be made to the Revenue Department.
November 15, 1949 Honorable W. Harvey Atkinson, Director Property and License Tax Unit
I am pleased to acknowledge your letter of October 11, 1949, in which you ask whether or not the Bibb Transit Company, a corporation organized under the laws of Georgia who has recently acquired a franchise from the Georgia Power Company to operate the transportation system in Macon, shall return their property to the Revenue Department for valuation or to the county and to the municipality.
Code Section 92-5902 of the Annotated Code of Georgia of 1933 provides as follows:
"92-5902. Returns by public utilities made to whom.-All persons or companies owning or operating railroads, street railroads, suburban railroads, or sleeping cars in this State; all persons or companies, including railroad companies, doing an express, telephone, or telegraph business (except small telephone companies, or persons doing a telephone business, whose capital stock or property is of less value than $5,000) ; all persons or companies doing a gas, water, electric light or power, hydro-electric power, steam lieat, refrigerated air, dockage, cranage, canal, toll-road, toll-bridge, railroad-equipment, or navigation business, through their presidents, general managers, owners, or agents having control of the companys' offices in this State, shall be required to make annual tax returns of all property located in this State to the Comptroller General; and the laws now in force providing for the taxation of railroads in this State shall be applicable to the assessments of taxes on the businesses above stated."
You will note from reading the above quoted Code Section that "street railroads" and "suburban railroads'' are required to make annual tax returns
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of all property to the Comptroller: General (presently, Revenue Commissioner), and in view of the fact that such a transportation system is considered a public utility, I am inclined to believe that the Bibb Transit Company should make their returns to the Revenue DepartmE:nt.
COUNTIES-Lines (Unofficial) County lines may not be changed by special law.
January 6, 1949 Ron. Ed Stapleton Attorney at Law
I am pleased to acknowledge your letter of December 30th, in which you reque>+. information conctrning the question of changing the county line between Seminole and Decatur Counties.
I am sure that you understand that I cannot give you an official ruling on this question. I am glad however, to cite you the provisions of law which I believe will provide a sufficient answer to your inquiry.
Section 2-7808 of the Code provides as follows: "County lines shall not be changed unlE:ss under the operation of a general law for that purpose." In keeping with the above constitutional provision, Chapter 23-3 provides a general method for changing county lines. The Supreme Court of Georgia in the case of Worth County vs. Crisp County, 139 Ga. p. 117, held that a special act which applied only to the two counties named in the caption of this case was void because the same conflictE:d with the above general statute on the subject. I would suggest that you read the Worth County case carefully, since I believe you will find some helpful statements in this decision.
COUNTIES-Officers (Unofficial) In the absence of contrary provisions in acts relating to county commissions, two members of a three-member board may transact ordinary business until the third member, prevented by illness, shall qualify.
January 13, 1949 Ron. J. Pierce Anderson Attorney at Law
I am pleasE:d to acknowledge your letter of January 6th, in which you state that one county commissioner elect, because of illness, has been unable to qualify for that office. You ask "whether or not the two existing commissioners have the power and authority to carry on, transact, and execute the regular, usual, and ordinaxy business pertaining to this office."
Of course you understand that under the law, I cannot give you an official opinion on this question. The Constitution and statutory laws relating to the office of the Attorney General prohibit me from giving an official opinion to anyone othEr than the Governor and heads of the various departments of State upon matters pertaining to the operation of the State government.
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It is my personal view, purely unofficial and without binding effect upon anyone, that the two commissioners are authorized to carry on and transact the business of the office, since their action would represent a quorum vote. This would be the general rule unless you find some contrary authority contained in the acts relating to this local office.
COUNTIES-Officers (Unofficial) If land processioner represents county, ordinary is entitled to fee for appointing him.
February 21, 1949 HonorablE> Henry A. Flanders Ordinary, Emanuel County
I am in receipt of your letter of recent date in which you request information regarding the Ordinary fees for appointing land processioners.
As you no doubt already know, no such fee is listed under Section 24-1716 of the Annotated Code of Georgia. I should think that if you issue an order appointing a land procE>ssioner that you would be entitled to the regular fee for the issuance of such order. If the land processioner represented a county, I would certainly think that the county would be required to pay such fee. I have been able to find nothing in this Section on Ordinaries regarding land processioners.
Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than Govtrnor and heads of the vmious departments of the State upon matters pertaining to the interests of the State. However, it is a pleasure for mE> to refer you to the provisions of law applicable to your question as a matter of informatio::1.
COUNTIES-Officers (Unofficial) A bill to change compensation of county officers from fee to salary basis would not be repugnant to Sec. 2-7902 and would be subject to attack only if the change affected officers then in commission.
April 22, 1949 Honorable Edwin S. Kemp RE>presentative, Clayton County
I am in receipt of your letter of April 18, 1949 in which you discuss a bill which was passed at the recent session of the General Assembly changing compensation of your county officials from the fee system to the salary system. You state that you would like to obtain the proceedings of the constitutional committee regarding Section 2-79-2 of the Annotated Code.
I regret that I do not know where a copy of those proceedings could be obtained but I suggest that you write Ben Fortson who would probably be able to give you the desired information concerning this matter.
Several sections of the 1945 Constitution have not as yet been interpreted by the Courts of this State. Among them is Section 2-7902. I am inclined to agree with you and Representative Sills that it was the intent of that Section to permit the Legislature to place the officials of any particular county
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on any basis of compensation which the Legislature so desired. However, it was my policy when drafting bills of that nature to inform the members of the General Assembly that Section 2-7902 had not been tested and that it was possible that the intent was of a different nature from the intent which I have set out above.
In your particular case, I believe that the main section of the Constitution which is the basis for the attack on your bill is S6ction 2-2301 which reads as follows:
"The General Assembly may, at any time, by a majority vote <Jf both branches prescribe other and different salaries for all of the elective officers provided for in this Constitution, but no such change shall affect the officer'! then in commission."
I am attempting to make no interpretation of either Section 2-7902 or 2-2301 but I would like to point out the possibility that under Section 2-7902 your bill would more than likely be all right and that the only thing wrong with your bill would be that it attempted to change the salaries of the officers then in commission.
As I have said, I am not offering this as an opinion but am merely pointing out certain possibilities in the hopes that they will be of some help to you.
COUNTIES-Officers (Unofficial) The act of 1949 permitting payment of bond premiums for county officers does not contemplate the payment of a portion thereof by the State.
May 2, 1949 Honorable Ivy M. Smith, Commissioner Roads and Revenues, Bleckley County
I am pleased to acknowledge your letter of April 25, 1949 in which you requested an opinion from me relative to whether the Act, which was passed by the 1949 Legislature requiring county officers' bonds to be paid out of county funds, intended that the State would pay their pro rata share of such premiums.
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and heads of the various departments of the State. This information is, therefore, to be considered purely of a personal nature and binding on no one.
House Bill No. 87, found in Georgia Laws 1949, page 1190, 1191, states: "Section 1. That all county officials who are required to give an official bond are hereby required to make bond signed by some surety <Jr guaranty company authorized to do business in this State. The premiums due on ail such bonds may be paid by the county fiscal authorities out of county funds and it shall be permissive upon the county fiscal authoriti&s in every county of the State of Georgia to pay the premiums due on all such bonds out of the county funds, provided that if bond premiums are paid for any county officer they shall be required to pay for all." It is my opinion that it was the intent of this law to require these premiums to be paid out of county funds without any pro rata share being paid by the State. The law simply does not provide for such proration.
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COUNTIES-Qffic:era (Unofficial) A former tax assessor may serve as registrar under new law prior to the expiration of one year from end of term as assessor.
May 9, 1949 Mr. M. C. Sanders
I am in receipt of your letter of May 5, 1949 which reads in part as follows:
"I served several years as Tax Assessor in Banks County, having resigned about two months ago. Recently Judge Pratt appointed me Registrar under the new law. Can I legally serve in this before the 'year is out'?''
Section 92-6'907 of the Code of Georgia of 1933 concerning Tax Assessors reads as follows:
"The members of the board, during the time they hold their offices and for one year thereafter, shall be ineligible to hold any State, county or municipal office, but they may be appointed to succeed themselves as members of said board."
I believe that this section is the only one applicable to your situation.
I have studied the new registration act as passed by the recent session of the General Assembly and find that it contains no prohibition which would prohibit you from serving as registrar.
The section of the Code which I have cited states that the Tax Assessors shall be ineligible to hold any State, county or municipal office. I am of the opinion that the office of Registrar would not come within either one of those classifications. It is definitely not a State office nor a municipal office.
In the case of Andrews v. Butts Coun.ty, 29 Ga. App. 302, the Court held as follows:
"The office of a county registrar is not 'a county office' within the meaning of the statute (Ga. L. 1913, p. 125, 4) which provides that a member of a board of county tax-assessors shall be ineligible to hold any other State, county, <>r municipal office. County officers are virtually defined by the constitution of this State (art. 11, sec. 2, par. 1, Civil Code of 1910, 6599) as officers who are elected by the qualified voters of their respective counties, <>r districts, and who hold office for four years, and who can only be removed from office on conviction for malpractice in office. A county registrar is not elected by the qualified voters of his county or district, but is appointed by the judge of the superior court of the county, and can be removed from <>ffice at the will of the judge."
This case was decided before the adoption of the 1945 Constitution and also before the enactment of the new law. However, the section of the 1877 Constitution which is cited by the Court has been carried over into the 1945 Constitution verbatim.
I am also of the opinion that this ruling would apply to registrars under the provisions of the new registration set with the same effect that it applied to registrars when this case was decided.
I am of the opinion that the office of Registrar is not a county office within the meaning of the Constitution and of Section 92-6907. Therefore, I can see no legal prohibition which would prohibit you from serving as registrar from the date which you were appointed by the Judge of your circuit.
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Since my official authority is restricted by law to legal matters relating to the State Government my views in this letter must be accepted as unofficial and personal.
COUNTIES-Officers (Unofficial) Under the 1949 amendment, names of candidates for Soil Conservation Supervisors shall appear on ballot grouped by counties, and voters from the district as a whole shall select one candidate from each county as supervisor for the district, representing that county.
May 19, 1949 Honorable E. H. Thomas, Executive Secretary Georgia State Soil Conservation Committee
I am pleased to acknowledge your letter of May 17, 1949 in which you request my opinion regarding the election of District Soil Conservation Supervisors as follows:
"The soil conservation law of March 26, 1937 provides. for only three elected supervisors in a soil conservation district. The new amendment of February 15, 1949 provides for an elected district supervisor from each county.
"The three supervisors. under the original law were elected from the district at large. The question is, can those supervisors be elected by the voters in their home county only, or will they have to be elected from the district at large? that is, be on the ticket in each county?"
Section 6 of the Act approved March 26, 1937 (Ga. L. 1937, pp. 377-404) codified as Section 5-2001 of the 1933 Annotated Code, Pocket Supplement, provides:
"Within 30 days after the date of issuance by the Secretary of State of a certificate of organization of a soil conservation district, nominating petitions may be filed with the State Soil Conservation Committee to nominate candidates for supervisors of such district. The Committee shall have authority to extend the time within which nominating petitions may be filed. No such nominating petitions shall be accepted by the Committee, unless it shall be subscribed by 25 or more qualified electors of such district. Qualified electors may sign more than one such nominating petition to nominate more than vne candidate for supervisor. The Committee shall give due notice of an election to be held for the election of three supervisors for the district. The names of all nominees on behalf of whom suc!h nominating petitions have been filed within the time herein designated, shall appear, arranged, in the ailphabetical order of the surnames, upon ballots, with a square before each name ar.d a direction to insert an X ma.rk in the ,square before three names to indicate the voter's preference. All qualified electors residing within the district shall be eligible to vote in such election. The three candidates who shall receive the largest number, respectively, of the vote,s cas.t in such election shall be the elected supervisors for such district. The Committee shall pay all the expenses of such election, shall supervise the conduct thereof, shall prescribe regulations governing the conduct of such election and the determination of the eligibility of voters therein, and shall publish the results thereof."
Under the provisions of the above section, the names of all nominees were arranged in alphabetical order of the surnames upon the ballots and the three
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candidates recE:IVmg the largest number, respectively, of the votes cast in the whole district were elected supervisors for such district.
Section 6, above referred to, was amended by an Act approved February 15, 1949 (Ga. L. 1949, pp. 584-587) to read as follows:
"Within thirty (30) days after the date of issuance by the Secretary of State of a certificate of organization of a soil conservation district, nominating petitions may be filed with the State Soil Conservation Committee to nominate candidates for supervisors of such district. The Committee shall have authority to extend the time within which nominating petitions may be filed. No such nominating pE:titions shall be accepted by the Committee, unless it shall be subscribed by twenty-five (25) or more qualifiE:d electors of such district. Qualified electors may sign more than one such nominating petition to nominate more than one candidate for supervisor. The Committee shall give due notice of an election to be held for the election of supE:rvisors for the district. The names of all nominees on behalf of whom such nominating p,etitions have been filed within the time herein designated, shall appear, grouped by counties and arranged in the alphabetical order of the surnames upon ballots, with a square before each name and a direction to insert an X-mark in the square before each name to indicate the voter's preference. All qualified electors residing within the district shall be eligible to vote in such election. The candidate or candidates who shall receive the largest number in each county, respectively, of the vot,es cast in such election shall be elected supervisors for such district represen,ting that county fr'om which elected. The Committee shall pay all the expenses of such election, shall supervise thE: conduct thereof, shall prescribe regulations governing the conduct of such election, and the determination of the eligibility of voters therein, and shall publish the results thtreof.''
Under the provisions of this 1949 amendment to Section 5-2001, it is provided that the names of the nominees shall be grouped by counties on the ballots and the candidate or candidatE:s receiving the largest number of votes in each county, respectively, of the votes cast in such district shall be elected supervisors for such district representing that county from which elected.
Section 7 of the 1937 Act (Ga. L. 1937, pp. 377-391) codified as Section 5-2002 of the 1933 Annotated Code, Pocket Supplement, was amended by the 1949 Act (Ga. L. 1949, pp. 584-587) to read as follows:
"The governing body of the district shall consist of not less than five supE:rvisors, elected or appointed as provided hereinabove. The two supervisors appointed by the Committee shall be persons who are by training and experience qualified to perform the specialized skilled services which will be required of them in the performa.rtce of their duties hereinunder. Supervisors shall be elected upon a county basis consisting o-f not more than one elected supervisor in eadh county within a soil conservation district, except in districts consisting of less than thr'ee, counties."
It will be noted that the provision, "All qualified electors residing within the district shall be eligible to vote in such election", is contained in the 1949 amendment in the same language as contained in the 1937 Act.
It is my opinion that thE: elected Supervisors of Soil Conservation Districts continue to be elected by the voters of the whole district under the provisions of the 1949 Act, but the nominees are to now be grouped on the ballot by counties and the nominee receiving the largest number of votes cast for those nominees from his county in his group shall be elected to rE:present his county.
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There is no provision in the 1949 Act providing for separate or individual county elections within the soil conservation district. It appears to be the 'ntent of the 1949 Act to allow the nomination of candidates, under the conditions prescribed in the Act, from the respective counties of the soil conservation district, but to retain the system of the voters of the whole district passing upon such nominees, and the one receiving the largest number of votes in the group from his county would be elected to serve from the particular county in the district, whereas, under the old Act, the elected supervisors were not restricted to come from any county in the district, being in effect, elected supervisors at large.
COUNTIES-Officers (Unofficial) The bill of 1949 regarding payment of bond premiums for county officers is permissive rather than mandatory, under the principle that where there is a conflict in the declaratory portion and the recitation of the bill as amended, the latter prevails.
June 27, 1949 Honorable C. 0. Nixon Clerk Superior Court Newton County
I am in receipt of your letter of June 2, 1949 in which you request an interpretation of the "County Officers Bond Premium" Act which was passed at the 1949 session of the General Assembly.
This Act was House Bill No. 87 and is found in Georgia Laws, 1949, on page 1190.
The title of House Bill No. 87 reads as follows: "An Act to amend an Act making it mandatory for all county officers who are required to give bond to give a surety bond and to provide that the premiums due on such bond may be paid by the county fiscal authorities from county funds; approved March 28, 1947; to provide that the premiums due on such bonds must be paid by the county fiscal authorities and making it mandatory upon such county fiscal authorities to pay the premiums due on such bonds from county funds." The first portion of the body of the Act says that Section 1. of the 1947 Act shall be amended by striking the second sentence and inserting in lieu thereof the following: "The premiums due on all such bonds must be paid by the county fiscal authorities out of county funds, and it shall be mandatory upon the county fiscal authorities in every county of the State of Georgia to pay the premiums due on all such bonds out of the county fund". Then, the Act says, "so that said Section One when amended shall read as follows: "'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. The premiums due on all such bonds may be paid by the county fiscal authorities out of county funds and it shall be permissive upon the county fiscal authorities in every county of the State of Georgia to pay the premiums due on all such bonds out of the county
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funds, provided that if bond premiums are paid for any county officer they shall be required to pay for all.' "
Therefore, we can readily see that portions of the Act are in conflict with each other.
The basic question involved in an interpretation of a Legislative Act is the determination of the intent of the Legislature. In determining this intent, the Act itself must govern, if possible.
In the case of Gilbert v. Georgia Railroad & Banking Co, 104 Ga. 412, the facts were very similar to the present situation. The Court in that case held as follows:
"While in amending statutes it is proper to embrace in the first part of the amending act, as declaratory of the intention of the General Assembly, what is to be the character .of the amendment, still this part of the statute, which is merely declaratory of the legislative intention, is not to be looked to as the final determination of the General Assembly. When a statute or s~:;ction of the code to be amended is recited in the statute in its amended shape, and it is in express terms declared th~:;rein that when amended the old law shall read in a certain way, this declaration by the General Assembly, being the last expression of its intention as to what shall be the law of the State, absolutely controls where any conflict arises as to matter contained in this declaration of what the law shall b~:; and what is set forth in the first part of the amending statute as declaratory of the legislative intention. If the declaratory part, which recites that certain amendments are to be made, is entirely omitted from the recital as to how the statute shall read when amended, it is to be presumed that it was the intention of th~:; General Assembly to omit from the new law that part of the amending statute which was not carried into the new law ,as recited in the statute, and that the failure to strik~:; from the declaratory p~rt of the law so much of it as was not to be embraced in the new law was by mistake or inadvertenc~:;."
See also, Crine, et at v. Morton Salt Comp.any, 178 Ga. 754. It is, therefore, evident that in determining intent, the latter portion of the Act is controlling and that portion of the Act which quotes how the section shall read as amended is definitely controlling over the title and the first portion of the Act. I am not att~:;mpting to pass upon the constitutionality of the Act in question. It is contrary to the policy of the Attorney General to declare an Act of the General Assembly to be either constitutional or unconstitutional, inasmuch as that is the final prerogative of the Courts of this State. Every Act of the General Assembly is presumed to be constitutional until declar~:;d otherwise by a court of competent jurisdiction. Since my official authority is restricted by law to legal matter relating to the State Government, my views in this letter must be accepted as unofficial and personal.
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COUNT>IES-Officers (Unofficial) A county tax assE:ssor may not at the same time serve as a member of the Milk Control Board.
July 11, 1949 Honorable Franklin H. Pierce County Attorney, Richmond County
In answer to your letter of July 7, 1949, in which you requested an opinion as to the eligibility of Tax Assessors to serve on the Milk Control Board, I will first refer you to the Annotated Code of Georgia of 1933, Section 92-6907, which reads as follows:
"92-6907. Assessors ineligible to hoM other office.-The mE:mbers of the board, during the time they hold their offices and for one year thereafter, shall be ineligible to hold any State, county or municipal office, but they may be reappointed to succeed themselves as members of said board."
Also, in this connection, I will refer you to the Annotated Code of Georgia of 1933, Section 42-525, as it appears in the pocket edition of the Code, and reads as follows:
"42-525. Creation of Milk Control Board; appoin.tment; term of office; compensation.-There is hereby created a Milk Control Board to consist of eight members. The membership of the Board shall be maintained to include two producers; two producer-distributors, one of whom shall be a m~:omber of a cooperative marketing association; one distributor; two consumers, and one store licensee. The members of the Board shall be appointed by and shall serve at the pleasure of the Governor and not more than two members of said Board shall bE: appointed from any one congressional district of the State. Each appointed member shall be paid from the milk control fund $6 for each day actually engaged in official functions of the Board plus subsistence and necessary traveling expenses."
In view of these two Code Sections, I am of the opinion that a member of the Board of Tax Assessors would be ineligible to serve on the Milk Control Board.
Since my official authority is rE:stricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
COUNTIES-Officers (Unofficial) 1. All members of Wilkes County Board of Commissioners are required by the act creating the Board to post bond. 2. Each of such members is a county officer. 3. It is not permissible to pay premiums on bonds of certain county officers and not on others.
August 17, 1949 Honorable B. I. Cheney, Clerk Board of CommissionE:rs Roads and Revenues Wilkes County
I am pleased to acknowledge your letter of August 10, 1949 requesting my opinion as follows:
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"An Act passed by the General Assembly and approved on February 25, 1949 (page 1190 of 1948-1949 sessions) proposes to allow premiums on bonds of county officers to be paid from county funds. In prescribing the effective date of the provisions of this Act the Act says 'This Act shall become effective upon the approval thereof by the Governor and shall be effective as to the payment of pr6miums due on all bonds required of COUNTY OFFICERS beginning January 1, 1949'.
"We would greatly appreciate your opinion as to whether the four members of our Board of Commissioners, advisory members who are appointed by our G~and Jury, the Clerk of Board of commissioners and Warden who are appointed by our Board of Commissioners are considered as COUNTY OFFICERS under the law. The members of our Advisory Board only receive compensation of $120.00 p6r year but are required to be placed under bonds of $3000.00 each. Our idea is, according to the Constitution of Georgia, Paragraph 1, Section 2, Article 11, that to be classed as a COUNTY OFFICER one must be 'elected by the qualified voters of their respective counties', and as none of the above mentioned officials or employees are 6lected, our Board could continue the payment of premiums on their bonds without necessarily having to pay the premiums on bonds of elected County officHs. The Chairman of our Board, who is an elected County Officer, is paying his own bond, but we do not think this law proposes to make employees or appointed members of our Advisory Board pay bond premiums on bonds they are required to furnish."
Under the law I can only give official opinions to the Governor and to th6 heads of the various Departments of the State Government on matters in which the interest of the State is involved. However, I am always glad to be of such assistance as I may to the county officials in helping them solve their problems if I can do so without invading the province of the county attorneys.
Primarily, the questions propounded in your letter to me are ones which fall within the jurisdiction of the county attorney of Wilkes County since they involve local officials. In the ev6nt of any litigation, the county attorney would of necessity be called upon to defend the actions of the county officials.
The Act approved August 4, 1917 creating a Board of Commissioners of Roads and Revenues for Wilkes County (Ga. Laws 1917, pp. 436-440) provides in part as follows:
"Sec. 8.. Each member of said board of commissioners, before entering upon the duties of his office, shall make oath before the ordinary of said county to faithfully perform and administer the affairs of said office, and to carry out the provisions of this Act. Each member of said board shall give a bond in the sum of three thousand ($3,000.00) dollars, payable to th6 Governor of this State, and his successors in office with securities approved by the ordinary of Wilkes County.
"Sec. 9. The said board of commissioners shall meet in the court-house of said county on the first Tuesday in each month. At all meetings the chairman of said board shall preside, but in his absence any member of said board may act as chairman pro tempore. Any thre6 of five members of said board shall constitute a quorum, and, regardless of the number present, it shall require three concurrent votes to pass any order, transact any business, or take any action in regard to any county matter. They may a1so meet at other
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times, and at such places in their discretion as may be for the best interest of the county, and they may adjourn from day to day.''
Section 2 of the above Act provides that the Chairman shall be elected by the qualified voters of the county and that the Grand Jury of Wilkes County shall appoint four other members of the Board.
Section 9, above cited, provides that any three of the five members of said board shall constitute a quorum, and, regardless of the number present, three concurrent votes are required to pass any order, transact any business, or take any action in regard to any county matter.
It appears that under the language of this Act that all members of the Board of Commissioners are equal in their power on the commission except that the Chairman shall preside at all meetings of the Board and approve and sign the minutes of each meeting, and issue and sign as chairman all orders and processes of said board, and all warrants against the county treasury, and act as general executive officer in seeing that the board's orders and di. rections are carried out and that all agents, employees or officials serving under said board shall perform their duties imposed upon them by the Board of Commissioners.
The Act nowhere mentions any of the members as advisory members as referred to in your letter.
The Supreme Court in the case if Rhod,es et al. v. Jernigan et al., 155 Ga. 523, held:
"The members of the board of roads and revenue are county officers, but are not such county officers as are referred to in art. 11, sec. 2, par. 1, of the State constitution (Civil Code (1910), 6599), which, as amended, provides in part that 'The county officers shall be elected by the qualified voters of their respecJ;ive counties, or districts, and shall hold their offices for four years.' The next paragraph of the constitution (Civil Code, 6600), provides: 'Whatever tribunal, or officers, may hereafter be creatEod by the General Assembly, for the transaction of county matters, shall be uniform throughout the State, and of the same name, jurisdiction, and remE>dies, except that the General Assembly may provide for the appointment of commissioners of road and revenues in any county,' and art. 6, section 19, par. 1 of the constitution (Civil Code, 6548), provides as follows: 'The General Assembly shall have power to provide for the crE>ation of county commissioners in such counties as may require them, and to define their duties.' It has been held by this court that the legislature has power to pass separate and distinct acts for any counties which require county commissioners, and 'it is not necessary that these acts shall be uniform in their operation in all such counties.' Smith v. Duggan, 153 Ga. 46'3, 465 (112 S. E. 458), and authorities cited.''
It will be noted that the citations in the above decision will be found in the new Constitution under Sections 2-7901, 2-7806 and 2-5201.
The Act of 1947 on page 1544 provided in Section 1 as follows: "That all coun,ty officials who are required by law to give an official b.ond are hereby required to make bond signed by some surety or guaranty company authorized to do business in this State. The premiums due on all such bonds may be paid by the county fiscal authorities out of county funds.'' (Emphasis supplied.) This was the statute in effect prior to the adoption of the amendment approved February 25, 1949 (Ga. Laws 1949, p. 1190,)
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The 1949 Act amended the 1947 Act to read as follows: "That all county officials who are required to give an official bond are heoreby required to make bond signed by some surety or guaranty company authorized to do business in this State. The premiums due on all such bonds may be paid by the county fiscal authorities out of county funds and it shall be permissive upon the county fiscal authorities in every county of the State of Georgia to pay the premiums due on all such bonds out of the county funds, provided that if bond premiums are paid for any county officer they shall be required to pay for all. "This Act shall become effective upon the approval thereof by the Governor and shall be effe:ctive as to the payment of premiums due on all bonds required of county officers beginning January 1, 1949." It would be noted that the language used in Section 1 of the 1949 Act is "all county officials''. The basic question involved in an interpretation of a Legislative Act is the determination of the intent of the Legislature. In determining this intent, the Act itself must govern, if possible. In the case -of Gilbert v. Georgia Railroad & Banking Co,, 104 Ga. 412, the S'upreme Court of Georgia held as follows: "While in amending statutes it is proper to embrace in the first part of the amending act, as declaratory of the intention of the Georgia Assembly, what is to be the character of the amendment, still this part of the statute, which is merely de:claratory of the legislative intention, is not to be looked to as the final determination of the General Assembly. When a statute or section of the code to be amended is recited in the statute in its amended shape, and it is in expre:ss terms declared therein that when amended the old law shall read in a certain way, this declaration by the General Assembly, being the last expression of its intention as to what shall be the law of the State, absolutely controls where any conflict arises as to matter contained in this declaration of what the law shall be and what is set forth in the first part of the amending statute as declaratory of the legislative intention. If the declaratory part, which re:cites that certain amendments are to be made, is entirely omitted from the recital as to how the statute shall read when amended, it is to be presumed that it was the intention of the General Assembly to omit from the new law that part of the amending statute which was not carried into the new law as recited in the statute:, and that the failure to strike from the declaratory part of the law so much of it as was not to be embraced in the new law was by mistake or inadvertence." See also, Grine, et al. v. Morton Salt Company, 178 Ga. 754. It is, therefore, evident that in determining intent, the latter portion of the Act is controlling and that portion of the Act which quotes how the section shall read as amended is definitely controlling over the title and the first portion of the Act. It is my view that the General Assembly inte:nded the above cited 1947 and 1949 Acts to apply only to county officials who are required by law to, give an offi,cial bond. Under the 1917 Act creating the Board of Commissioners of Roads and Revenues for Wilkes County, it is provided in Section 8 thereof that each member of the Board shall give: a bond in the sum of $3,000.00 payable to the Governor of the State and approved by the Ordinary of Wilkes County.
466
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
I would suggest that if the Board of Commissioners desires an official opinion they request the county attorney of Wilkes County to render an official opinion which would be binding on the county officials who may be involved, since my views in this matter are not binding upon anyone and are given only as information.
COUNTIES-Officers A member of the County Welfare Board not only may, but must continue to discharge the duties of his office, until the appointment and qualification of his successor.
September 2, 194~ Honorable Alan Kemper, Director State Department of Public Welfare
This will acknowledge receipt of your letter of September 1, 1949 requesting my opinion as to whether or not a member of a County Welfare Board whose term has expired can hold over and perform the duties of such office until his successor has been appointed and qualified.
Section 89-105 of the 1933 Annotated Code of Georgia provides: "All officers of this State shall reside therein, at such places as are designated by law, and discharge the duties of their offices until their successors are commissioned and qualified; and all officers whose certificates to records or other papers are admissible in evidence in any court in this State must have and keep an official seal." The Supreme Court of Georgia in the case of Shackelford vs. West, 138 Ga. 159, said: " . . . The general law provides that 'All officers of this State must discharge the duties of their office until their successors are commissioned and qualified.' . . . The policy of provisions of this nature is that it is the wiser and better course to permit the incumbent to hold over until a successor is appointed or elected and commissioned in the prescribed legal manner, rather than to have no one authorized to discharge the functions of the office. Where the legislature creates an office and provides for the appointment of an officer to fill it for a given number of years, the incumbent will hold over beyond the fixed term, until his successor is commissioned and qualified...." In the case of Roby vs. The Sta,te of Georgia, 74 Ga. 812, this principle was applied to jury commissioners. In the case of Walker e>t al vs. Ferrill, 58 Ga. 518, it was applied to county commissioners. In the case of Min,ter vs. Lan,e, 173 Ga. 756, it was applied to city councilmen. In the case of Smith & Bondurant vs. Meador, 74 Ga. 416, it was applied to a commercial notary. In the case of Bates vs. Bigby, 123 Ga. 727, it was applied to a Notary Public and ex-officio justice of peace whose resignation had been accepted by the Governor and the Court held that although the resignation had been ac-
46'i
cepted, that he continues in office until his successor was commissioned and qualified.
Section 99-501 of the 1933 Annotated Code of Georgia, Pocket Supplement, provides:
"There shall be established in each county of the State a county department of public welfare. . . "
Section 99-503 of the 1933 Annotated Code of Georgia, Pocket Supplement, provides:
"The county board of public welfare shall consist of five members appointed by the county commissioner or board of commissioners, or the constituted fiscal or financial agent of each respective county with the approval of the State Department: Provided, that no elected officer of the State or any subdivision shall be eligible for such appointment. Two members of the county board shall serve for terms of two years and three members shall serve for terms of three years in the first instance, and thereafter all members of the county board shall serve for three years. Appointments to fill vacancies caused by death, resignation or removal before the expiration of such term shall be made for the residue of such term in the same manner as herein provided for original appointments...."
The Legislature created the office of County Welfare Board Member, and provided for the appointment of a person to fill it for a given number of years.
It is my opinion that a County Welfare Board Member whose term has expired can and should hold over and perform the duties of such office until his successor has been duly appointed and qualified. It is my further opinion that a County Welfare Board Member comes within the provisions of Section 89-105 of the 1933 Annotated Code of Georgia, and that it is mandatory upon such officer to perform the duties of his office until his successor has been appointed and qualified, as provided by law.
COUNTIES-Officers (Unofficial) 1. A local bill lengthening term of County Commissioners passed in 1943, though defective by reason of failure to advertise, is presumed to have been enacted in accordance with constitutional requirements. 2. The 1945 Act had no application to a bill passed in 1943. 3. Even though, on the theory that the 1943 bill was invalid, another bill, itself defective, was attempted to be passed in 1949, such bill leaves the 1943 bill in effect.
November 8, 1949
Mrs. Johnnie Sanders, Clerk Board of Commissioners Twiggs County
I am in receipt of your letter of November 3, 1949 which you wrote at the request of the Commissioners. Your letter reads in part as follows:
"There is quite a discussion in our county as to the length of the Commissioners term of office. In 1943 there was a bill introduced and passed lengthening the term from two years to four years, so that it would coincide with the other county officers terms. The Board that went out December 31st
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of last year did serve the four years. Then the question was raised as to the legality of this bill because it had not betn advertised, and that it would not stand. So in January of this year our Representative Mr. Claude Kitchens, advertised and passed the same bill. Now, he tells us, because of fault in the phrasing of this bill it will not stand. We want you to please give us the information we; need in this matter. We understood that we were elected to and had begun a four year term, but if not, we need to know just where we stand at once.''
Of course, you realize that this is a local county matter which should address itself to your County Attorney. However, I am glad to be of whatever help I can in the solution of your problem.
The pertinent Act creating the Board of Commissiontrs was passed in 1923 and may be found in Georgia Laws 1923, Page 324. There were three Acts passed attempting to change the Board as it was established by the 1923 Act. These three Acts were in 1927, 1929 and 1933. All three of them had refertndum sections attached and so far as I have been able to ascertain, all three were defeated in the referendum elections. I was unable to find the results of these referendum elections in the Secretary of State's Office but you may check the results in the Ordinary's Office of your County. I presume, however, that all thrE:e were defeated and this letter will be written under that presumption.
The 1943 Act to which you refer in your letter amended the 1923 Act and changed the term of the Commissioners from two to four years. You state in your letter that the qutstion was raised as to the legality of this bill because it had not been advertised and that it would not stand.
The old constitutional provision requiring notice reads as follows: "No local or special bill shall be passed, unless notice of the intention to apply therefor shall have been published in the locality where the matter or thing to be affected, may bE:' situated, which notice shall be given at least thirty days prior to the introduction of such bill into the General Assembly, and in the manner to be prescribed by law. The evidence of such notice having been published, shall be exhibited in the General Assembly before such act shall be passE:d."
There was a statutory provision which also required advertisem*nt. This may be found in Section 47-801 of the 1933 Code.
Under these provisions it was only necessary to show to the Gtneral Assembly a copy of the newspaper in which the notice was published and a certificate from the Ordinary or Mayor of the town or city showing that such notice had been published. The rule of law was that once a bill had been passed, it was presumed to have been enacttd i41 accordance with all constitutional requirements and it was not permissible to show to the contrary.
The Constitution of 1945 changed the provisions concerning local legislation and this provision may be found in Section 2-1915 of the Annotated Code of Georgia. The statutory requirtment which was enacted pursuant to the constitutional provision may be found in Section 47-801 of the 1947 Cumulative Pocket Part of the Annotated Code. The statutory provisions are exactly the same as those of the Constitution.
Since the Act in question was passtd in 1943, it would come under the old rule of law and would not be subject to the provisions of the 1945 Consti-
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tution. Therefore, as far as advertisem*nt is concerned, the 1943 Act would be presumed to have been enacted in accordance with all constitutional requirements.
I refer you to the case of Smith et al. vs. M~Mi~hael, 203 Ga. 7 4, Headnote 2 (a). This h(oadnote reads in part as follows:
"The old Constitution of 1877 contained a provision in general terms requiring publication as to notice (art. III, sec. VII, par. XVI). Code, 2-1816. The specific requirement was fixed by statute, which required publication and posting of the notice on the courthouse door. Under the old rule it was only necessary to exhibit to the General Assembly a copy of the newspaper in which the notice was published, together with a certificate from the ordinary or mayor of the town or city showing that such notice had been posted. Therefore, under the law as it existed under the old Constitution, it W!as a settled rule that a properly enrolled act ,of the General Assembly was conclusively presumed to have been enacted in accordance with all constitutional requirements, and it was not permissible to show to the contrary."
You state that the Representative says that because of fault in the phrasing of the 1949 bill it will not stand.
I have examined this 1949 Act and the only fault that I was able to find was an omission of the date of the expiration of the present terms of the Commissioners and the omission of the date of the commencement of the new terms. This evidently was caused by a failure on the part of your Representative to fill in those blanks when he received his draft of the bill.
Under the assumption that the 1949 Act is unconstitutional, it would not affect the 1943 Act because as I have pointed out above, the 1943 Act would be of force and effect.
Under the assumption that the 1949 Act is constitutional, it would not change the situation because of the fact that it merely duplicates the 1943 Act which provided for four year terms.
Thus, it is evident that actually the 1949 Act whether constitutional or unconstitutional is in reality mere surplusage.
I, therefore, reach the conclusion that the terms of the Commissioners of Twiggs County are of four year duration.
Since my official authority is restricted by law to legal matters relating to the State Government my views in this letter must be accepted as unofficial and personal.
COUNTIES-Offi~ial Organ (Unofficial) 1. A county organ may sell advertising to county at less than legal rates provided there is no agreement to do so. 2. The Ordinary, Clerk and Sheriff may change official organ during the year. 3. No date is specified upon which choice of the organ shall be made; a record should be kept of the meeting at which this is done.
January 4, 1949 Hon. Fields Whatley Polk County Times
I am pleased to acknowledge your letter of January 1st, in which you ask several questions relating to legal advertising in a local official organ.
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Of course you understand that under the law I cannot give you an official
ruling on these questions, since I can render such opinions only to the Governor
and heads of the various departments of State upon matters pertaining to the
operation of the State government. It must therefore be understood that any-
thing said in this letter is not to be construed as an official ruling, and is not
binding upon you, the county officials, or anyone else. It would be my sug-
gestion that these matters be submitted to your local county attorney, since
he is in a position to give a ruling thereon.
As to your question as to whether I know of any law prohibiting the sale
of legal advertising to a county or a municipality at less than the legal rates,
my answer is in the negative. However, it must be understood that any agree-
ment to charge less than the rate prescribed by law would be in violation of
the express statute setting such rates. I would suggest that you consider the
language of Code Section 39-1105 in connection with this question.
You ask whether or not the ordinary, clerk and sheriff have the authority
to make a change of the official legal organ during the year. It seems that
this question will be answered by Section 39-1103 of the Code. I do not find
any prohibition against such change being made, provided a majority of these
officials agree upon such a procedure.
Your third inquiry is whether or not the law designates any specific date
as to when the three officials shall select the legal organ. My review of the
provisions of law relating to this subject do not show that a specific date has
been designated for this action.
Your last question is, after such an organ has been selected, are these
officials required to keep any record of the meeting at which such selection
was made?
Again, my review of the statutes on this subject fail to disclose a specific
provision of law covering this subject. However, I believe that custom will
show that usually some record is kept of matters of this nature.
May I again repeat that the answers I have given you above are simply
my personal views on the questions you have asked, and must not in any
sense be considered as binding upon anyone.
COUNTIES--Official Organ (Unofficial) County Commissioner must publish official tax levy in currently constituted county official organ.
September 19, 1949
Honorable G. F. Dodson, Editor The Haralson County Tribune
This will acknowledge receipt of your letter of September 15th in which you ask:
"Please advise if it is mandatory upon a county commissioner to publish official tax levy in official organ, or would same be legal if published in any newspaper?"
In Section 39-1101 of the Code of 1933, it is provided in part as follows: "39-1101. Sales, how advertised.-The sheriffs and coroners shall publish we&kly, for four weeks, in some newspaper published in their counties respectively,-and if there be no such paper published in the county, then in the
471
nearest newspaper having the largest or a general circulation in such countynotice of all sales of land and other property executed by him; etc...."
In construing this section our Supreme Court, in the case of Coffee et al. vs. Ragsdale, Ordinary 112 Ga. 705, held:
"When the sheriff of a county selects a newspaper in which to pu'J:ish his legal advertisem6nts, that newspaper becomes, under the code, the official medium for all county advertisem*nts, and the code makes it the duty of the ordinary and the person or persons who have charge of county matters to publish their advertisem*nts therein."
This was the law until the General Assembly pass6d the Act approved August 15, 1910, (Ga. Laws 1910, page 87), from which Section 39-1103 of the Gode of 1933 is codified, which was pointed out in the case of, Dollar, Sheriff, et al. vs. Wind, 135 Ga. 760.
Section 39-1103 of the Code of 1933 providts as follows: "39-1103. Selection of official organ.-No journal or newspaper published in this State shall be declared or made the official organ of any county for the publication or sheriff's sales, ordinary's citations or any other advertising commonly known and term "official or legal advertising" and required by law to be published in such county official newspaper, unless such newspaper shall hav~ been continuously published and mailed to a list of bona fide subscribers for a period of two years, or is the direct successor of such journal or newspaper, and no change shall be made in the official organ of any county except upon the concurrent action of the ordinary, sheriff and clerk of the superior court of said county or a majority of said officers: Provided, that in counties where no journal or newspaper has been established for two years the official organ may be designated by the ordinary, shtriff and clerk of the superior court, a majority of these officers governing." Under the above provisions of law and decisions of the court it is my opinion that the present official organ is legally entitled to receive the advertisem*nts of tax levies until such timt as the official organ is changed, as provided by law. Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
COURTS-Civil (Unoffidal) Pleading and practice of Civil Courts shall conform to that prescribtd for superior courts where not inconsistent with the acts creating such civil courts.
April 22, 1949 Honorable W. M. Moody Clerk, Superior and City Courts
I am pleased to acknowledge your letter of April 16, 1949 in which you ask my opinion as to whether the new rul~s of the Superior Court apply to the Gity Co.urt of Baxley.
I am prohibited by law from rendering opinions to anyone except the Governor and heads of the various Departments of the State Government and then only on matters in which the inttrest of the State is involved. However,
472
I am always glad to be of such assistance that I can to county officials in helping them to solve their problem without invading the province of their county attorney. Therefore, anything that I may say in reply to your request is to be considered unofficial and as information only which is not binding upon anyone in any manner whatsoever.
SE>ction 81-1507 of the 1933 Annotated Code of Georgia, Pocket Supplement, which is codified from the Acts of 1946, pp. 761-780, provides:
"The provisions of the Rules of Procedure, Pleading, and Practice in Civil Actions adopted by the Supreme Court on January 12, 1946, and now ratified and confirmed, shall apply to all suits in the superior courts of this State except those proceedings specifically excepted in section 81-1506, and shall ailso ap,ply
to all matte'rS pertaining to service, pleading and p,ractice in cases in city courts where not inconsi,stent with the acts creating such city courts or acts
amendatory thereof." (Emphasis supplied.) You will note that it provides that such rules shall apply to all matters
pertaining to service, pleading and practice in cases in city courts where not inconsistent with the acts creating such city courts or acts amendatory thereof.
Section 13 of the Acts of 1897, (Ga. L. 1897, p. 424) creating the City Court of Baxley, provides:
" . . . that in all matters pertaining to service, pleading and practice, the laws governing the supE>rior court when not inconsistent with this Act and unless otherwise specifically provided by this Act, shall be applicable to said city court."
Sections 14 through 34 of the above Act of 1897 dE>al exh;austively with pleadings and practice in the City Court of Baxley and I would suggest that1 you review these provisions.
The Court of Appeals of Georgia in the case of Allen v. Hix Green Buick Company, 50 S. E. (2d) 16'8, said:
"It will be noted that in Code section 81-1507 the legislature provided that the 'RulE>s of Procedure, Pleadings', and practice in civil actions 'shall
apply to all suits in the superior courts of this State * * * and shall * *" * apply * * * in city courts where not inconsistent with the acts creating such
courts or acts amendatory thereof."
COURTS-Constables (Unofficial)
A constable is not a county officer and therefore premiums on his bond may not be paid from county funds.
January 11, 194!t Hon. I. N. Daniell, Ordinary Haralson County
I am pleased to acknowledge your letter of January 6th, in which you ask whether or not constables are county officers, and come within thE> purview of Acts of 1947, p. 1543.
The Act which you refer to requires all county officers to give surety bonds, and provides that the premiums due on such bonds may be paid by the county fiscal authoritiE>s from county funds, and further, that this Act shall not affect any officer in office during his present term.
Under the Constitution and laws of this State, the Attorney General is
473
prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the operation of the State government. You will thereforE: understand that this is not an official opinion and is not binding upon you, the constables, or anyone else. However, I am glad to refer to your lettE:r in my personal capacity and give you the following information which I trust will be beneficial in solving this question.
In the case of McBrien vs. Starkweather, 43 Ga. App. p. 818, the Gourt held as follows:
" (4) A constable is not a county officer; and therefore a coronE:r, as a county officer, is not, by virtue of Section 259 of the Political Code of 1910, which prohibits any person from holding two county offices at the same time, prohibited from holding the office of constable.''
To the same effect, SE':e Ro,se vs. The State, 107 Ga. p. 697. You also ask whether or not it is necessary for constables to give bonds for the faithful discharge of their duties. This question is answered by Section 24-811 of the Code, which provides in part as follows: "All constables, excE:pt those thus appointed, must, before entering on the discharge of their duties, give a bond payable to the ordinary of the county, and his successors, with two good securities resident in the county, in the sum of $500.00, to be approved by such ordinary which shall be by him filed in his office and recorded in a book kept for that purpose: ..." The exception referred to above will be found in the preceding Section (24-810) which providE:s for the appointment of constables in emergencies. The above Code Section was dealt with by the Supreme Court of Georgia in Motes vs. Davis, 188 Ga. p. 682, where the Court in effect held that a constable is required to give an official bond as set forth in Sections 24-804 and 24-811 of the Code. I trust that the provisions of law cited herein, togE:ther with the decisions of our appellate courts, will be sufficient to give you the desired information. Since this is a local matter, it would be my suggestion that you consult with your county attorney in this matter, since he is in a position to give you an official ruling in the premises.
COURTS-Constables (Unofficial) Sets out privileges and criminal jurisdiction of pE:ace officers.
July 28, 1940 Honorable Harry A. Shurley Justice of the Peace 1296th G. M. District
I am pleased to acknowledge your letter of July 13, 1949 which has been referred to me by Honorable Ben W. Fortson, Jr., Secretary of State.
Under the law, I can only give official opinions to the Governor and to thE: heads of the various Departments of the State Government. However, I am glad to be of assistance to you in giving you my personal views on the matters mentioned in your letter.
A constable duly appointed or elected is an arresting officer and has the right to carry a badge of his office and a revolver or pistol in the performance
474
of his duties prescribed by law. A constable does not need a permit to carry a gun.
You will find the civil jurisdiction of justices of thE: peace set forth in Sections 24-1001 - 24-1016 of the 1933 Annotated Code.
In reference to the criminal jurisdiction of Justices of the peace, Section 24-1501 provides as follows:
"A justice of the peace shall have criminal jurisdiction in the following instances:
"1. In acting as conservator of and preserving the public peace in his district and county.
"2. In issuing warrants for the apprehension of any person charged on oath with a violation of any penal law of this State or for the apprehension of any person who the justice of the peace officially knows has violated any such provision.
"3. In examining any such person brought before him, and in committing, binding over, or discharging such person according to the directions of this Code."
Section 24-1502 providE:s as follows: "The criminal jurisdiction of a justice of the peace extends throughout his county as to crimes committed therein." I would suggest that you read the case of Ormond v. Ball, 120 Georgia Supreme Court Reports, page 916, which gives a very exhaustive explanation of the present day duties of thE: justice of the peace in relation to his criminal jurisdiction. Paragraph 1 of Section 24-1501,. above referred to, provides that a justice of the peace is a conservator of the public peace in his district and county. A conservator of the peace is an officer authorized to preserve and maintain the public peace and comE:s within the definition or description of a peace officer. In the case of Jones v. State, 65 S. W. 92, the Appellate Court of Texas held that a Texas statute imposing a penalty for carrying a pistol excludes from its operation all peace officE:rs and the Constitution of Texas provides that county judges shall be conservators of the peace. Under these statutes it was held that a county judge was entitled to carry a pistol, the term "conservator of peace" being synonymous with "peace officer". Although a justice of the peace in the exercise of his duties as conservator of the peace may carry the necE:ssary implements to protect himself in the discharge of his duties, it would be my personal view that the duties of arresting persons for violation of laws should be delegated to the constable of the district and the justice confine himself to the issuing of warrants and such processE:s as he deems necessary to preserve the peace, since the offender when arrested may be brought before the justice for a commital hearing. The justice should not be the arresting officer and the magistrate, hearing for himself and passing Judgment upon the offE:nder arrested by him. Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
475
COURTS-Costs (Unofficial) The party carrying a civil case to the Supreme Court or Court of Appeals by bill of exceptions shall pay costs and give bond to opposite party.
.July 25, 1949 Honorable F. C. Cooper, Clerk Superior Court Whitfield County
In reply to your letter of July 20, 1949, requesting an opmwn regarding the paying of cost in a case that is being carried to the Court of Appeals or Supreme Court by Bill of Exceptions, I would like to call your attention to the Annotated Code of Georgia of 1933, Section 6-1002, which reads as follows:
"6-1002. Operation of bill of exceptions as supersed:eas in civil cases.The bill of exceptions thus filed shall operate as a supersedeas upon the plaintiff in error complying with the following terms:
"1. In a civil cause the party shall, on or before filing the bill of exceptions, pay all costs, and, by himself, his agent, or his attorney in fact or at law, give bond with good security, payable to the opposite party, and conditioned for the payment of the eventual condemnation money and all subsequent costs, which bond shall be attested and approved by the said clerk. If such bond shall be filed and all cost then accrued paid, subsequently to the filing of the bill of exceptions, provided the same shall be done within 10 days after such bill of exceptions is filed, further proceedings under the judgment shall' be stayed until a decision is had upon the bill of exceptions.
"2. Or he may file an affidavit with the said clerk, stating that he is unable, from his poverty, to pay the costs or give the security for the eventual condemnation money, and that his counsel has advised him that he has good cause for a writ of error, which affidavit shall operate as if the costs were paid and bond given.''
Practically the same rule applies in criminal cases. The defendant may pay the accrued cost or file a pauper's affidavit, or give a supersedeas bond that will be in the form of a final condemnation money bond, the supersedeas bond to be assessed by the presiding judge and approved by the Clerk of the Court.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
COURTS-Constables (Unofficial) Sets out duties of constables.
October 24, 1949 Honorable Roy Chapman Ordinary, Fannin County
In reply to your letter of October 20, 1949, I will cite you to Code Section 24-817 Of the Annotated Code of Georgia of 1933, which enumerates the duties of a Constable and reads as follows:
"24-817. Special du,ties.-It is their duty"1. To attend regularly all terms of the justice's court in their respective districts.
476
"2. To attend all terms of the superior courts of their respective counties, when summoned by the sheriff for that purpose.
"3. To give receipts for notes or other liquidated demands placed in their hands for collection.
"4. To pay over money promptly as collected to the party entitled thereto; and in cases of conflicting claims to any money, to report the same to the next justice's court of the district where they are amenable, for its order in the premises.
"5. To execute and return all warrants, summonses, executions, and other processes to them directed by lawful authority.
"6. To perform such other duties as are or may be required of them by law, or which necessarily appertain to their offices."
I can place no construction upon this code section that would possibly give the Constable authority to do the acts as set out in your letter. However, this seems to be a matter for the local authorities to correct.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
COURTS-Justices of the Peace (Unofficial) ' A Justice of the Peace may also act as Mayor of a municipality.
January 11, 1949 Honorable M. I. Seawright, Clerk Town of Norman Park
I am pleased to acknowledge your letter of January 4, 1949, in which you ask if a justice of the peace is eligible to hold the office of mayor of a municipality.
Under the law I am prohibited from giving opinions to anyone except the Governor and the heads of the various State Departments. However, I am :glad to be of assistance to municipal officials whenever I can without invading the jurisdiction of the City Attorneys, and anything that I may say in reply to your letter must be considered as information and not binding on anyone in .any manner whatever.
I am not familiar with any general law of this State which would prohibit :a justice of the peace from also holding the office of mayor of a municipality. It may be that you have in mind the provisions of Section 89-101 of the Code of 1933, which reads in 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, but the acts of such person, while holding a commission, shall be valid as the acts of an officer de facto, viz: (4) 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 of either of the several States, or of any foreign State."
However, in construing the above provision as it appeared in an earlier Code, it was held in the case of Long v. Ro,se, 132 Ga. 288, that this provision of the Code did not render one who held the office of mayor of a municipal
477
corporation located in such county; nor did it render persons who respectively held the offices of county treasurer and member of the board of education of the county ineligible to hold the offices of aldermen of such municipal corporation. The decision of the court in that case was based upon the theory that the words employed in the statute declaring ineligibility to hold "any civil office in this State" do not refer to municipal officers such as mayor and aldermen. The cited case was followed in the case of Phillips v. City of Jefferson, 13 Ga. App. 376, in which it was held that the solicitor of the city court and the clerk of the superior court were not disqualified to serve as members of the city council of the City of Jefferson.
Of course there may be provisions contained in the charter of the municipality to which you have reference which would prohibit a person holding the office of justice of the peace from also holding the office of mayor. I am unable to definitely answer that question, as you do not state what municipality is referred to in your request. However, your attention is called to the following language of the court in the case of Phillips v. City of Jefferson, supra, which may be pertinent to the situation to which you have reference:
"In this view the provision of the charter of Jefferson which empowers the mayor and each member of the council, under certain circ*mstances, to discharge the duties of justice of the peace and sheriff, can not affect the case; for E:ven if any one of them was on such an occasion a State officer pro tempore, neither the mayor nor any of the council would be State officers when discharging municipal functions. The right to discharge upon occasion the duties of a State officer has been granted them; and perhaps, while executing the duties of the office o:ll- either justice of the peace or sheriff, the councilmen of the City of Jefferson might temporarily be civil officers of this State, but when acting as mayor or councilmen their duties would be of an entirely different nature, and the character of their offices would be fixed by the discharge of these municipal duties."
COURTS-Justices of the Peace (Unofficial) In each militia district one Justice of the Peace is elected and one ex-officio Justice appointed by the Judge of the Superior Court.
January 17, 1949 Colonel W. H. Boshoff
This is to acknowledge receipt of your letter of January 7, 1949, with reference to the justice of the peace in your district.
There' is one justice of the peace in each militia district who is elected by the people. The law provides for one ex officio notary public who acts as justice of the peace in each of the militia districts. He is recommended by the grand jury, appointed by the judge of the superior court and commissioned by the Governor of the State.
You understand, of course, that the Attorney General is prohibited by law from rendering opinions except to the Governor and the heads of the various State departments, and this must, thereforE:, be considered as information only and as not binding upon anyone.
478
COURTS-Justices of the Peace (Unofficial) In the absence of a contrary provision in the charter of a municipality, an individual may hold concurrently the office of Justice of the Peace and Mayor.
May 2, 1949 Honorable William B. Dorn
I am pleased to acknowledge your letter of April 30, 1949 in which you inquire whether a person can hold the office of Justice of the Peace and also hold the office of Mayor of a city at the same time.
I am permitted by law to give opinions only to the Governor and the Heads of the Executive Departments of the State on matters in which the interest of the State is involved. However, I am always glad to be of assistance to other public officials in helping them to solve their problems. Anything I may say in reply to your request is to be considered as an expression of my personal views and not binding upon anyone.
I know of no general law of this State which would prohibit a Justice of the Peace from also holding the office of Mayor of a municipality.
There may be provisions contained in the charter of the municipality to which you have reference which would prohibit a person holding the office of Justice of the Peace from also holding the office of Mayor. I would suggest that you consult the city attorney of the municipality and ascertain if the City Charter contains such a prohibition.
It is my personal view that a Justice of the Peace is not ineligible to hold the office of Mayor of a municipality unless prohib~ed by municipal charter.
COURTS-Justices of the Peace (Unoffidal) Justice of the Peace courts may be held on the Fourth of July, if not a Sunday, where the Court Day falls on that date.
May 31, 1949 Honorable C. L. Collins Court of Ordinary Bartow County
I am pleased to acknowledge your letter of May 27, 1949 in which you ask my advice as follows:
"As July the Fourth this year comes on the first Monday in July and the Code of 1933 states the Ordinary shall have his Court Day on every first Monday, this Office would like to be informed as to whether our Court Day should be held on Monday July 4th, or Tuesday July 5th.''
Section 24-2101 of the 1933 Annotated Code of Georgia provides as follows:
"The courts of ordinary shall be held at the place prescribed for the superior court or in the office of the ordinary in each county, by the ordinary thereof, on the first Monday in each month, and continue in session from day to day as the business of the court may require. No case returnable to the first Monday is to be tried during said term, that is not called on that day and regularly set for a hearing on said day, or at a later date."
Section 24-2102 of the 1933 Annotated Code of Georgia provides as follows:
479
"If from any circ*mstance the ordinary should fail to hold said court at the regular term, or at any adjourned term, or tht business of the court requires it, said ordinary, or his clerk, may adjourn said court to such time as he may think proper: Provided, such adjournment shall be entered on the minutes of the court."
Stction 24-2103 of the 1933 Annotated Code of Georgia provides as follows:
"The ordinary may appryint some fit and proper person to open and adjourn his court in the absence of an officer to do so."
The Supreme Court of Georgia in the case of Hamer vs. Sears et al., 81 Ga. 288 at p. 290, held:
"The main ground of equity relied on is, that the judgment was rendered on the 4th of July, and it was contended that the 4th of July was dies non juridicus, and that therefore the judgment was void. We have a different opinion. Thtre is no statute of this State that inhibits the courts from sitting on the 4th of July, if it fall not on Sunday, or which prevents the court from rendering judgment on that day. It is true that the 4th of July is a holiday by our code, and for some purposes certain things cannot be done,-such as the noting and protesting of notes and commercial paper; and these things are specially mentioned in the statute (code, 2783); but no where are the courts prohibited from mee:ting and transacting business on that day."
Webster's New International Dictionary defines the words "dies non juridicus" as follows:
"A day on which the business of Courts cannot be lawfully carried on.'' Under the above cited decision of the Supreme Court of Georgia, the courts of our State are not prohibited from meeting and transacting business on the 4th of July. Since my official authority is restricted by law to legal matters relating to the State: Government, my views in this letter must be accepted as unofficial and personal.
COURTS-Justices of the Peace (Unofficial) Upon expiration of the term of a Justice of the Peace and failure at a called election to elect successor: 1. The ordinary shall appoint a resident of the district; 2. The Justice whose term has expired may continue to act; or 3. Where there is no Justice in the district where a defendant resides, suit may be removed to an adjoining district.
June 7, 1949 Honorable Roy Owenby
This acknowledges receipt of your letter of June 1, 1949 in which you ask my advice as follows:
"As Notary Public of Fairplay District in Fannin County, will you please advise me as follows:
"The Justice of Peace time expired and election was called and no Justice elected.
"And I, Notary Public, sick with lingering ailment under doctor's treatment and unable to attend business whatsoever, and case pending in Court.
480
Please advise me as to how same is to be attended to." SE:ction 24-408 of the 1933 Annotated Code provides as follows: "When any district is without a justice of the peace, and an election has
been legally ordered to supply the vacancy, and none is bona fide held at the time and place designated, the ordinary shall appoint some person resident in the district, and certify the appointment to the Governor, who must commission the appointee for the required term."
Generally, the acts of a de facto officer are valid and where the term of a Justice of the Peace has expired and no one has been duly elE:cted and commissioned to fill the office, the official acts of the Justice whose term has expired would be those of a de facto officer.
Section 24-1008 of the 1933 Annotated Code provides as follows: "Where there is no justice of the peace in any district where a defendant resides, or there is one and he refuses to serve generally or in any particular case, the suit may be located in any adjoining district." Section 24-1009 of the 1933 Annotated Code provides as follows: "If suits are already commenced and are suspended for want of a justice of the peace to preside or competent jury to try such cases, such suits shall be removed to the adjoining districts, unless the evil is removed within 60 days, or upon the fact being made to appear to the court by affidavit of either party to such suits." Section 24-1010 of the 1933 Annotated CodE: provides as follows: "If, from any cause, all such suits cannot be located or prosecuted in some adjoining district, they may be commenced or removed to the justice's district which embraces the county site.'' Section 24-1011 of the 1933 Annotated Code provides as follows: "The justices of the peace and constables of any district where a suit is thus begun or removed have the same power as those officers have in the proper districts.'' Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
COURTS-Juticea of the Peace (Unofficial) A Justice of the Peace, although his resignation has been tendered and accepted, is such Justice until his successor has been elected and is qualified.
June 24, 1949
Honorable J. Ross Lawrence I am pleased to acknowledge your letter of June 21, 1949 in which you
ask my advice as follows: "Does a Justice of the Peace hold office until his successor is elected
and qualified?" In the case of Bates v. Bigby, 123 Ga. 727, the Supreme Court of Georgia
held: "Another ground of illegality was, that the judgment upon which the
execution issued was based upon a verdict rendered on an appeal to a jury in the Justice's court from a judgmE:nt rendered, on August 25, 1903, by
481
W. L. Venable, who had, on August 22, 1903, 'in writing and unconditionally', resigned the office of notary public and ex-officio justice of the peace of the militia district in the justice's court of which the case was then pending, and the Governor on the same date 'accepted said resignation unconditionally,' and for this reason Venable, at the time he rendered such original judgment, was neither de jure nor de facto a magistrate, and that therefore, the appeal from his judgment, the verdict on the appeal, and the judgment 'rendered by the pre,sent justice' on the verdict were all void. 'Public officers are trustees and servants of the people' (Constitution, Civil Code, 5698), and 'All <>fficers qf this State must . . . discharge the duties of their office until their successors are commissioned and qualified' (Political Code, 226). This statute is mandatory, and there are good reasons why it should be so, among them, that governmental functions should not cease, and that the public records of the office should be preserved and handed over to a successor. In Badger v. Unite,d States, 93 U. S. 599, the Supreme Court of the United States had under consideration a section of the constitution of the State of Illinois, which provided that public officers 'shall hold their offices until their successors shall be qualified', and the court held that 'A supervisor, town clerk, or justice of the peace, although his resignation is tendered to and accepted by the proper authority, continues in office, and is not relieved from his duties and responsibilities as a member of the board of auditors, under the township organization laws of the State of Illinois, until his successor is appointed, or chosen, and qualified.' The principle rule in that case has been followed in United States v. Justices, 10 Fed. 460, People v. Supervisors, 100 Ill. 332, Jones v. Jefferaon, 66' Tex. 566, and Keen v. Featherstone (Tex), 69 S. W. 983. So notwithstanding the resignation of Venable and its acceptance, it not appearing that a sue~ cessor had been appointed and qualified, we hold that he was legally a notary public and ex-officio justice of the peace at the time he rendered the judgment in question.''
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
COURTS-Mayor's (Unofficial}) Where there is no city or county court in the county, the Mayor's Court may try one charged with operating motor vehicle whi1e under influence of intoxicating liquors.
November 9, 194!~ Honorable Roland M. Arthur City Attorney
Re: Jurisdiction of Mayor's Court This will acknowledge receipt of your letter of August 27, 1949 in regard to the above matter. In the second paragraph of your letter you ask the following question: "Does the Mayor's Court of the City of Ashburn, Georgia have the power to try cases wherein the accused is charged with operating a motor vehicle under the influence of intoxicating liquors, which offense is declared a misdemeanor under Code Section 68-307, by virtue of the acts of the Georgia Leg-
48'2
islature of 1937~38, Code Section 92A-501 and 92A-503 Georgia Code Annotated."
In the: last paragraph of your letter you ask my opinion in this matter. It is my opinion that if there is no city or county court in your County, then the Mayor's Court would have jurisdiction to try misdemeanors growing out of the violation of Chapter 92A-5 of the Code of Georgia. You will notice that Section 92A-502 provides that the Mayor may dispose of such cases in counties where there is no city or county court. Please allow me to call your attention to the case of Gibson, SuJ)i!'rin,tenclent o,f Prisons, etc., v. Gober, 204 Ga. 714, and also the case of Clarke, Superintendent, vs. Johnson, 199 Ga. 163. Each of these cases is a single headnote and I think these cases are completely controlling on the question at hand. Since my official authority is restricted by law to le:gal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
COURTS--Ordinaries (Unofficial) An ordinary is both a judicial and a county officer.
February 17, 1949
Hon. Walter C. Stevens, Ordinary Bibb County
I am pleased to acknowledge your lette:r of February 15th, in which you cite many Code Sections relating to the subject of the ordinary being classified as a judicial officer. Section 2-4101 of the Constitution of 1945 provides:
"The powers of a Gourt of Ordinary and of Probate shall be veste:d in an Ordinary for each county, from whose decisions there may be an appeal, or by consent of parties, without a decision, to the Superior Court under regulations prescribed by law."
Section 24-1701 of the Code provides: "Powers of a Court of Ordinary and of Probate shall be vested in an ordinary for each county.'' The above provisions of law, all of which were cited in your letter, refer to the ordinary as a court. From your letter I do not e:xactly understand the question you have in mind. You desire information as to whether the ordinary is a judicial officer or a county officer. It seems that this officer could be classified as both. I also call your attention to the case of Lee vs. Byrd, 169 Ga. p. 622, where the court held: " (1) An incumbent in office as ordinary is a county officer within the meaning of the Constitution and laws of the State.'' Of course you understand that under the law I cannot pass upon any question relating to county matters, since the Constitution prohibits the Attorney General from ruling on such matte:rs. This letter is simply being sent as a matter of information with the hope that the authorities cited herein may throw some light on the question under discussion. Since your letter to me contains so many authorities, I feel there is little I can add to the study which you have already made of this matter.
483
It will be my suggestion that your specific question be presented to the county attornEoy, since he is in a position to give you an official ruling. It ls difficult for me to give all of the information obtainable on the subject when I do not have the complete background of the question presented before me.
COURTS-Ordinaries (Unofficial) Where there is no city court in the county, the Court of Ordinary may try one charged with operating motor vehicle while under the influence of liquor, provided accused waive trial by jury.
March 9, 1949
Honorable A. E. Ertzberger Ordinary, Hart County
In your letter of March 4th you request an op1mon on whether or not the Court of Ordinary in counties having no City Court has jurisdiction to try cases arising out of operating a motor vehicle while under the influence of intoxicants.
The Constitution of the State of Georgia of 1945 provides in Section 2-4102 of the CQde, among other things:
"The Court of ordinary shall have jurisdiction to issue warrants, try cases, and impose sentences thereon in all misdemeanor cases arising under the Act known as the Georgia StatEo Highway Patrol Act of 1937, and other traffic laws, . . !'
Section 92A-501 of the Code of Georgia states: "Jurisdiction of courts extended.-The jurisdiction of the courts of ordinary, of municipal courts and police courts of the incorporated towns and cities of this State, are hereby enlarged and extended so that said courts, acting by and through the judge or presiding officEor thereof, shall have the right and power to conduct trials, receive pleas of guilty and impose sentence upon defendants violating the penal provisions of this Title, and upon defendants violating any and all oth11r criminal laws of this State relating to traffic upon the public roads, streets and highways of this State, whtre the penalty for the offense does not exceed that Qf the grade of misdemeanor, in the manner required by law." Section 92A-502 of the Code of Georgia provides as foilows: "Jurisdiction of court of Qrdinary.-The court of ordinary shall have jurisdiction to issue warrants, try cases, and impose sentence thereon in all misdemeanor cases arising under this Title, and other traffic laws of the State, in all counties of this State in which there is no city or county court, provided the defendant waives a jury trial. Like jurisdiction is also conferred upon the judges of the police courts in incorporated cities and municipal court judges, for offenses arising within their respective jurisdiction." In Section 92A-504 it is provided that for a defendant to be tried as provided in the foregoing sections he must waive in writing a trial by jury. In the case of Newmans v. The State, 65 Ga. App. 288, the court stated in the opinion that under the laws of this State an officer is authorized to take the defendant immediately before an Ordinary (or other tribunal) for trial or the giving of bond. In this case the defendant was charged with operating an automobile while under the influence of intoxicants.
484
It is my opm10n that in counties having no City Court, the Ordinary has jurisdiction to dispose of misdemeanor cases arising by virtue of traffic laws of this btatfl', including persons charged with operating motor vehicles upon the public roads, highways, and streets, within their respective jurisdictions, by accepting pleas, trying cases and imposing sentences. However, before an Ordinary is authorized to dispose of these cases, the' defendant shall first waive in writing a trial by jury.
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and heads of the departments of the State. Therefore, this information is to be considered my personal views and not binding on anyone.
COURTS-o11dinariea (Unofficial) Collections for traffic violations, after payment of costs, shall be paid into the county treasury.
June 24, 1949 Honorable Robley D. Smith Attorney At Law
In answer to your letter of June 22, 1949, requesting an unofficial opinion as to the disposition of all moneys collected by the Ordinary arising from traffic violations in Tift County, I will first refer you to Georgia Laws of 1937-38, Section 7, page 560, and since the Ordinary's authority to act in such cases is created by the laws above referred to, I am of the opinion that Sections 27-2902, 27-2903 and 27-2904 do not apply to moneys collected by the Ordinary in traffic cases.
The Ordinary, under the laws of 1937-38, is made the initial collecting officer and the disbursing officer of all funds collected by him for traffic violations disposed of in his court, and he is required to pay all moneys so collected, after legal claims against said fund have been paid by him, into the County Treasury.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
COURTS-ordinaries (Unofficial) Maximum fines in a court of ordinary are those provided by statute for the misdemeanor involved.
DE-cember 20, 1949 Judge J. J. Godley Court of Ordinary
I am pleased to acknowledge receipt of your letter of November 30, 1949 relative to the maximum fines which may be imposed in the Court of Ordinary.
Under the law I can only give opinions to the Governor and the heads of the various State departments on matters in which the State is involved. However, I am glad to be of assistance to you in giving you my personal views, which are to be considered as information only and not binding on anyone.
485
Section 92A-502 of the 1933 Annotated Code, Pocket Supplement provides: "The court of ordinary shall have jurisdiction to issue warrants, try cases, and impose sentence thereon in all misdE-meanor cases arising under this Title, and other traffic laws of the State, in all counties of this State in which there is no city or county court, provided the defendant waives a jury trial. Like jurisdiction is also conferred upon the judges of the police courts in incorporated cities and municipal court judges, for offenses arising within their 1espective jurisdiction." It will be noted that the above section confers jurisdiction upon the Courts of Ordinary in those counties specifically provided therein to try cases and impose sentences in all misdemEoanor cases arising under Title 92A and also confers like jurisdiction on said courts to try cases and impose sentence,
and other traffic laws o,f the State,,
Section 92A-504 of the 1933 Annotated Code, Pocket Supplement, prpvides that the Courts of Ordinary shall not have power to dispose of misdemeanor cases except where the defendant shall first waive in writing a trial by jury.
It would bEo my personal view that the maximum fines that may be imposed by the Court of Ordinary would be those fines specifically provided by statute for the particular misdemeanor involved in the trial.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
COURTS-Police Courts (Unofficial) Judges of Police Courts of incorporated cities have jurisdiction to try cases involving traffic violations under the State Highway Patrol Act.
August 3, 1949
Honorable James R. Ivey Mayor, Town of Milner
I am in receipt of your letter of July 25, 1949 in which you desire information regarding the trial of cases involving traffic violations where such cases have been made by the State Highway Patrol. You state that you act as the Police Court Judge and that there has been some question as to your authority to try such cases.
Section 2-4102 of the Constitution of 1945 reads as follows: "The courts of ordinary shall have such powers in relation to roads, bridges, ferries, public buildings, paupers, county officers, county funds, county taxes and other county matters as may be conferred on them by Jaw. "The court of ordinary shall have jurisdiction to issue warrants, try cases, and impose sentences thereon in all misdemeanor cases arising under the Act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws, and in all cases arising under the Compulsory School Attendance law in all counties of this State in which there is no city or county court, provided the defendant waives a jury trial. Like jurisdiction is also conferred upon the Judges of the police courts of incorporated cities and municipal court judges for offense arising under the Act known as the Georgia State Highway Patrol Act of 193 7, and other traffic laws of the State within their respective jurisdiction.''
486
I believe that this Section contains the answer to your question and I am of the opinion that you do have the authority to try these types of cases.
To further substantiate this opinion, I rofer you to Section 92A-501, 92A-502, 92A-503, 92A-504 and 92A-511. These sections may be found in the 1947 Accumulative Pocket Part of the Annotated Code of Georgia.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and pHsonal.
COURTS-Reporters (Unofficial) 1. Testimony in civil cases is recorded pursuant to agreement of counsel or, in case of disagreement, upon direction of the judge. 2. Testimony in criminal cases is recorded upon direction of the judgtO.
April 4, 1949
Honorable D. Gardiner Tyler, Jr. Assistant Attorney General Office of The Attorney General
This will acknowledge receipt of your letter of March 30, 1949, making inquiry as to the system that requires evidence in all cases to be transcribed.
You will find enclosed herewith a copy of a recent Act of the Georgia Legislature dealing with this subject, which is Act No. 151, House Bill No. 245.
Section 24-3101 of the Georgia Code Annotated of 1933, reads as follows: "Appointment; removal; oath of office; duties.-The judges of the superior courts shall have power to appoint, and at pleasure remove, a reporter or stenographic reporter for the courts of their respective circuits. Such reporter, before entering on the duties of his office, shall be duly sworn, in open court, faithfully to perform all the duties required of him by law; and it shall be his duty to attend all courts in the circuit for which he is appointtOd, and, when directed by the judge, to exactly and truly record or take stenographic notes of the testimony and proceedings in the case tried, except the arguments of counsel." Section 24-3103, of the same Code, reads as follows: "Compensation in civil cases.-The compensation of the reporter or stenographer for taking stenographic notes and r10cording the evidence in such civil eases as may be agreed by counsel for plaintiff and defendant to be recorded, or, in cases of disagreement, in such cases as the presiding judge may direct to be recorded, shall be at a rate not to exceed 10 cents per 100 words, to be fixed by said judge, which fte shall be paid by the parties to the agreement, upon such terms as they may prescribe for themselves; and if no agreement is entered into as to the payment thereof, then in such manner as may be prescribed by the presiding judge. Said reporter or stenographer shall, for reports of 6Vidence and other proceedings by him furnished, be paid by the party requesting the same at a rate not to exceed 10 cents for each 100 words." Section 27-2401, of the same Code, is as follows: "Stenographic notes; entry of testimony on minutes of court; transcript or brief.-One the trial of all felonies the presiding judge shall have the testimony taken down, and, when directed by the judge, the court reporter shall exactly and truly record, or take stenographic notes of, the testimony and
487
proceedings in the case, except the argument of counsel. In the event of the jury returning a verdict of guilty, the testimony shall be entered on the minutes of the court or in a book to be kept for that purpose. In the event. that a mistrial results from any cause in the trial of a defendant charged with thEI commission of a felony, the presiding judge may, in his dis~retion, either with or without any application of the defendant or State's counsel, direct that a brief or transcript of the testimony had in the case be duly filed by the court reporter in the office of the clerk of the superior court wherein such mistrial occurred. If said brief or transcript shall be ordered it shall be the duty of the judge to provide in said order requiring such brief or transcript for the compensation of said reporter, and that said transcript or transcripts shall be paid for on the order of said Judge, as now provided by law for transcripts in cases wherein the law requires the testimony to be transcribed, at a rate not to exceed that provided by existing statutes in cases wherein a sentence is made in felony cases: Provided, however, nothing herein contained shall be deemed or construed to in any wise impeach or avoid the operation of section 24-3104."
COURTS-Reporter& (Unoffidal) Code Section 24-3104 does not affect per diem of court reporters.
August 12, 1949 Honorable T. L. Williams
This will acknowledge receipt of your letter of August 4, 1949, requested an opinion and construction of the 1949 Georgia Laws as they appear in Code Section 24-3104 (Georgia Laws 1949, pages 646-647), and especially the construction of this law as it applies to your per diem in civil cases.
In view of Section 2 of said law, as it appears on page 647, and reads: "Section 2. Provided further that all laws applicable to any circuit or counties of this State governing the compensation of court reporters therein, heretofore enacted by the General Assembly, shall be and remain of full force and effect." I am of the opinion that Code Section 24-3103 of the Annotated Code of Georgia of 1933 contains the law applicable to your compensation in all civil cases, and the laws of 1949, as referred to above, do not apply to civil cases. Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
COURTS-Sheriff (Unofficial) A sheriff is entitled to the legal fee both for conducting a prisoner to and from jail, and for his services before the court.
September 26, 1949 Honorable J. D. Baston Ordinary, McDuffie County
I am pleased to acknowledge your letter of September 20, 1949 in which you ask my advice as follows:
488
"My question is this. Does the ShHiff earn $2.00 only in conducting a prisoner to and from jail, or should the fee of $3.00 be paid in the same case for 'services in every criminal case before the judge or judge and jury' mak~ ing a tqtal of $5.00 for the one case?''
All questions concerning the acts of county officials fall within the juris diction of the county attorn~y when an official binding opinion is desired. However, I am always pleased to be of assistance to county officials in giving my personal views as a matter of information.
Section 92A-505 of the 1933 Annotated Code, Pocket Supplement, provides that the "arresting officer" shall be allowed the same costs as are allowed in the Superior Court.
Section 92A-512 of the 1933 Annotated Code, Pocket Supplement, provides that the sheriffs of the several counties shall be entitled to an arresting fee as provided by law in all cases in which the sheriff or his lawful deputy assists in arresting or takes custody of any person charged with crime who has been apprehended by the State Patrol and delivered to the sheriff or his lawful deputy.
Section 24-2823 of the 1933 Annotated Code, Pocket Supplement, provides in part as follows:
" ... Conducting prisoner before judge or court to and from jail-$2.00. "Services in every criminal case before a judge or a judge and jury$3.00 ..." It is my personal view that a reasonable construction of the above provisions means that the sheriff would be entitled to a fee of $2.00 for conducting a prisoner to and from jail before judge or court and that he would be entitled to a fee of $3.00 for every criminal case before a judge or judge and jury, since the services in a criminal case in the court room are a separate and distinct item of service from that of conducting a prisoner to and from jail. In other words, the bringing and returning of a prison~r from jail is different from the services of the sheriff performed in the trial of a case. It is my further personal view that a sheriff would be entitled to the fea of $5.00 when he conducts a prisoner before a judge or court to and from jail and performs s~rvices before a judge or a judge and jury in a criminal case in which the prisoner which he conducted to and from jail was the defendant. Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unoffi~ cia! and personal.
COURTS-Sheriffs (Unofficial) In criminal cases the sheriff is to be paid a per diem plus actual expenses.
October 17, 1949
Honorable L. J. Norris Sheriff, McDuffie County
It appears that question (a) in your letter of September 24 has been answered in an opinion issued by my predecessor, T. Grady Head, March 19, 1945.
The exact point in question (b) has never been settled by a court d;;cision. As to question (c), the law simply provides in criminal cases that the sheriff
489
shall be paid a per diem plus actual expenses.' The actual expense item is one to be determined in the discretion of the proper fiscal authority. It is my understanding that the mileage fee varies in different counties. Of course, you know the law specifically prescribes ten cents per mile for civil cases.
COURTS-Su.perior (Unofficial) Superior court summons for petit and grand juries are issued by the clerks of that court.
June 6, 1949 Honorable LaCount D. Walker Clerk Superior Court, Pierce County
This will acknowledge receipt of your letter of June 2, 1949 in which you ask this question:
"Who is legally authorized to issue summons 1'or the petit jury and grand jury in the Superior Court?"
Code Section 24-2714 reads as follows: "Duties.-It is the duty of the clerks of the superior court-(Act 1799, Cobb, 573; Act 1810, Cobb, 577; Act 1850, Cobb 455; Acts 1851-2, pp. 77, 78) ... "3. To issue and sign (and attach seals thereto when necessary) every summons, subpoena, writ, execution, process or order, or other paper under the authority of the court." This is a matter that should be discussed with your County Attorney. I trust, however, the above Code Section will be of some value to you. Since my official authority is restricted by law to legal matters relating to the State Government my views in this letter must be accepted as unofficial and personal.
COURTS-Superior (Unofficial) A special appropriation is not required in connection with the retirement fund for Solicitors General.
August 4, 1949 Hon. M. H. Boyer Solicitor General
I am pleased to acknowledge your 'letter of July 26th, in which you ask for my personal views relating to the Act known as the Solicitors General-Retirement Fund as found in the laws of 1949, page 780. Your specific inquiry is whether or not a special appropriation bill is necessary in order for the benefits provided for in the Act to become operative.
It is my understanding that a special appropriation is not required, but that payments which may be made to solicitors general emeritus would be made from the appropriation found in the General Appropriation Act of 1949 relating to the costs of operating the superior courts of this State.
The payments required to be made to the retirement fund are set forth in Section 10 of the Act, and require that such payments be made to the Treasurer of the State of Georgia "for each calendar year, quarterly or bi-annually during the year, or in one lump sum to be paid not later than February 15th of the succeeding year, on a basis of five percent of the salary or fees of the solicitor
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general during the calendar year for which such payments are made. " You ask whether or not rules or regulations have been adopted by the
trustees in connection with the operation of this Act. At the present time, the trustees are engaged in considering formulating such rules and regulations, but as of this date, none have been adopted.
Of course you understand that this letter is simply being sent as a matter of infopnation and is not to be construed as an official opinion or binding upon you, the trustees, or anyone else.
COURTS-Superior (Un.official) Declaratory judgments are handled by clerk in same manner and on same fee basis as in other civil cases, cubject to direction of judge.
October 27, 1949 Honorable F. C. Cooper, Clerk Superior Court, Whitfield County
I am pleased to acknowledge your letter of October 11, 1949 in which you ask my advice in regard to Declarations. I assume that you have reference to Declaratory Judgments.
Under the law I can only give opinions to the Governor and heads of the various State departments on matters in which the interest of the State is involved. However, I am always glad to be of assistance to county officials wherever I can without invading the province of other officials.
Anything that I may say is to be considered only as information, and not binding upon anyone.
It is my personal view that Declaratory Judgments, insofar as a Clerk of the Superior Court is concerned, would be handled the same as any other civil case in the Superior Court, insofar as the duties of the Clerk and his fees are concerned, always, of course, being subject to the direction of the Judge of the Superior Court and his orders in the matter.
I would suggest that you consult the County Attorney as to the prior procedure and established custom in the Clerk's Office in your county, and the Judge of the Superior Court as to his general procedure in the handling of such cases.
COURTS-Witnesses (UnoUicial)
There is no provision of Georgia law providing for extradition of a witness from Georgia to Florida or vice versa.
March 9, 1949 Hon. Robert R. Taylor County Solicitor of the Criminal Court, Dade County
This will acknowledge receipt of your letter of March 3rd making inquiry as to the extradition of witnesses from Georgia to Florida and from Florida to Georgia.
I do not know of any act of the Legislature which would make it possible to extradite a witness from Georgia to Florida.
Under the Constitution and laws of this State, the Attorney General can
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only render official opmwns to the Governor and heads of the various State departments on matters pertaining to the operation of the State government. Therefore, this information is to be considered my personal views and not binding on anyone.
CRIMES AND PUNISHMENT-Firearms, unlawful possession of (Unofficial) One driving through Georgia may, without a license, continue to keep a revolver in compartment of car provided it is not removed therefrom and does not come in contact with his person.
April 21, 1949 Mr. R. E. Gould, Director Industrial Relations Bureau
This will acknowledge receipt of your letter of recent date asking the foJ. lowing question:
"Would I be in violation of any of your laws, were I to carry a revolver in the glove compartment of my car while passing through, or visiting the State 'Of Georgia?"
Please allow me to refer you to Code Section 26-5103 of the Annotated Code 'Of Georgia which reads as follows:
"It shall be unlawful for any person to have or carry about his person or to have in his manual possession outside of his own home or place of business any pistol or revolver without first taking out a license from the ordinary of the county in which the party resides: Provided, that nothing in this law shall be construed to alter, affect, or amend any laws now in force relative to carrying of concealed weapons on or about one's person: and Provided further, that this law shall not apply to sheriffs, deputy sheriffs, marshals, or other arresting officers of this State or the United States, who are now allowed, by law, to carry revolvers; nor to any of the militia while in service or upon uuty; nor to any students of military colleges or schools when they are in the discharge of their duty at such colleges." (Acts 1910, p. 134)
I am also referring you to the case of Hayes v. The State, 28 Ga. App. 67 (1) which reads as follows:
"Broyles, C. J. It was not a violation of the act of 1910, penalizing the carrying of a pistol on or about one's person, or having a pistol in his manual possession outside of his own home or place of business (Park's Ann. Code, Vol. 6, 348 (a) ) , for the owner of a pistol, while driving a horse and buggy, to have the pistol under the seat of the buggy where it was not in contact with his hands or any other portion of his person. Under this ruling the defendant',; conviction was unauthorized by the evidence, and the court erred in overruling the motion for a new trial. Judgment reversed. Luke and Bloodworth, J. J., concur. Decided January 17, 1922."
I am of the opinion that to have a pistol in the pocket of your car would not be a violation of the law. However, should you remove the pistol from the pocket of the car at any time while in the State of Georgia, you would probably be guilty of violating the above Code Section.
As the Attorney General is prohibited by law from rendering official opinions to persons other than the Governor and heads of the various Departments, this letter must be considered as merely my personal views on this subject.
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CRIMES AND PUNISHMENT-Lotteries (Unofficial) The operating of suit club whereby drawings are held and suits awarded to winner without payment of full purchase price constitutes a lottery.
March 8, 1949 Mr. Sam M. Gornto
I am pleased to acknowledge your letter of February 22 with reference to whether or not it would be legal to operate a suit club in connection with your business.
The Attorney General is prohibited by law from rendering legal opinions to anyone except the Governor and the heads of the various State Departments. However, I am always glad to assist you in any way that I can.
You outlined in your letter the method whereby you would have fifty members pay $3 per week each for fifteen weeks and beginning on the fourth week a drawing would be made each Saturday, and the holder of a lucky number would receive a suit and withdraw from the club. At the end of fifteen weeks all the members who had not won a suit during this time would have paid into the club the a;mount of $45 and could get this amount in trade at your place of business, or a suit of clothes.
I wish to call to your attention the headnote in the case of DeFlorin v. The State, 121 Ga. 593, which held as follows:
"A 'suit club,' whose members pay to a tailor one dollar per week, and which holds weekly drawing as a result of which the member holding the lucky number receives from the tailor a suit of clothes and then ceases to be a member of the club, is a scheme in the nature of a lottery. This is so although an unlucky member who continues to pay his dollar weekly for thirty weeks is entitled to a thirty-dollar suit of clothes regardless of the result of the drawing."
Section 26-6502 of the Code of Georgia of 1933 provides as follows: "Any person who, by himself or another, shall keep, maintain, employ, or carry on any lottery or other scheme or device for the hazarding of any money or valuable thing, shall be guilty of a misdemeanor."
CRIMES AND PUNISHMENT-Lotteries (Unoffi'cial) Issuance of trading stamps entitling holder to receive, from one other than vendor, an undescribed thing, constitutes a misdemeanor.
October 13, 1949 Mr. Lester L. Jones
I am pleased to acknowledge receipt of your letter of October 4, 1949, in which you request an opinion as to the Georgia law and Federal law, or laws, in regard to the use of premiums with the sale of articles of merchandise and the use of premiums in the sale of articles of merchandise by mail. I refer you to the Georgia Code Annotated, Section 26-6506, which is as follows:
"Trading stamps, issuance, etc.-It shall be a misdemeanor for any person, firm, or corporation to issue or give away, in connection with the sale of any article of goods, wares, or merchandise, any stamp, commonly called a trading stamp, or other like device, which said stamp or other like device would entitle the holder thereof to receive, from some other person or party than the vendor, any indefinite or undescribed thing, the nature of value of which was unknown
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to the purchaser at the time of the purchase of said article of goods, wares, or merchandise."
As for the Federal law in regard to your question, I refer you to the United States Code Annotated, Title XVIII, Section 1302, which is as follows:
"Mailing lottery tickets or related matter: Whoever knowingly deposits in the mail or sends or delivers by mail:
"Any letter, package, postal card, or circular concerning any lottery, gift enterprise, or similar scheme offering prizes dependent in whole or in part upon lot or chance ;
"Any lottery ticket or part thereof or paper, certificate or instrument purporting to be or to represent a ticket, chance, share, or interest in or dependent upon the event of a lottery, gift enterprise, or similar scheme offering prizes dependent in whole or in part upon lot or chance;
"Any check, draft, bill, money postal note, or money order for the purchase of any ticket or part thereof or of any share or chance in such lottery, gift enterprise, or scheme;
"Any newspaper, circular, pamphlet, or publication of any kind containing any advertisem*nt of any lottery, gift enterprise, or scheme of any kind offering prizes dependent in whole or in part upon lot or chance, or containing any list of the prizes drawn or awarded by means of any such lottery, gift enterprise, or scheme, whether said list contains any part or all of such prizes-
"Shall be fined not more than $1,000 or imprisoned not more than two years, or both; and for any subsequent offense shall be impprisoned not more than five years."
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
CRIMES AND PUNISHMENT-Pollution of Waters (Unofficial) The placing of a poisonous substance likely to destroy fish in any waters of the State is a misdemeanor.
February 23, 1949 Mr. Frank W. Fitch, Jr. Extension Wildlife Conservationist Georgia Agricultural Extension Service
With reference to your letter received February 16th, 1949, in regard to using poison in fish ponds or other streams, I quote you the following section of law.
Code Section 45-509 reads as follows : "Any person who shall directly by himself, or by aiding or abetting others, place in any of the waters of this State any poisonous substances, walnut hulls, lime, or other substances likely to destroy fish, shall be guilty of a misdemeanor." Under the Constitution and laws of this State, the Attorney General iR prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. However, it is a pleasure for me to refer you to the provisions of law applicable to your question as a: matter of information, and I trust the above will be of benefit to you.
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CRIMES AND PUNISHMENT-Sabbath Violation (Unofficial) The sale of motor oil is excepted as a "work of necessity".
August 1, 1949 Mr. Wade H. Folsom
In reply to your letter of July 27, I will first call your attention to the g&neral laws of Georgia cited in Code Section 26-6905:
"Violating the Sabbath day.-Any person who shall pursue his business or the work of his ordinary calling on the Lord's day, works of necessity or charity only excepted, shall be guilty of a misdemeanor."
However, the sale of gasoline is an exception to the general law, and this exception is made in the case of Williams vs. State, 167 Ga. 160:
"In the light of modern~day methods of traveling by automobile, the motorpower of which is derived from the use of gasoline, and in the light of the present-day use to which automobiles are put, the sale of gasoline on the Sabbath is a 'work of necessity' within the contemplation of the Penal Code (1910), ~ec. 416", and in view of this decision, the sale of motor oil is an exception to the general law.
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone other than the Governor and i:de heads of the various State Departments. Therefore, this letter reflects only the writer's personal opinion, and is not to be considered as binding..
CRIMES AND PUNISHMENT-Sodomy (Unofficial) The 1949 Act does not affect persons convicted before its passage.
April 20, 1949 Mr. R. J. Harris
I am in receipt of your letter of April 16th in which you request information regarding the recent Act of the General Assembly which changed the sentence for the conviction for the offense of sodomy.
This 1949 Act does not in any way affect persons who were convicted for the offense of sodomy prior to the passage of the Act.
Paragraph (c) which you refer to in your letter refers only to persons who have been or will be convicted for the offense of sodomy subsequent to February 8, 1949, the date of the Governor's approval of the Act.
As the Attorney General is prohibited by law from rendering official opinions to persons other than the Governor and heads of the various Departments, this letter must be considered as merely my personal views on this subject.
CRIMINAL PROCEDURE-Jurors (Unofficial)) A juror may not act on his own private knowledge regarding parties to or subject matter of a case unless qualified and examined as a witness.
January 27, 1949 Mr. Robert B. James
Please excuse the delay in answering your letter, but we have had several inquiries along this line and wanted to answer them all at the same time.
First, I want to emphasize that this Department has nothing whatever to
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do with prosecution of private crimes. We can only enter prosecution in civil suits to recover damages for the State of Georgia or criminal suits prosecuting State officials who have violated some law.
I can best answer your questions by quoting the following Code Section and citations from decisions.
Sectio-n 110-108 of the 1933 Code of Georgia Annotated is as follows: "A juror shall not act on his private knowledge respecting the facts, witnesses, or parties, unless sworn and examined as a witness in the case." In Chattanooga R. R. Co. v. Owen, 90 Ga. 26'5 (9), the court held: "Jurors should not be instructed that they can act upon their private and personal knowledge of the character of the witnesses who testify in the cause on trial, and it is error for the court to instruct them that they can consider such character if they know it.... If a juror has any material information or knowledge respecting the facts of a case, of which either of the parties desires to take the benefit, he should be put upon the stand to testify as a witness. Proffatt, Jury Trials, Sec. 36'9 . . ." (and other citations). In Savannah, Florida and Western Rwy. Co. v. Quo, 103 Ga, 125 (2), it is said: "A member of a jury impaneled to try a case is not by this fact debarred from testifying in such case as a witness, if otherwise competent." Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. However, it is a pleasure for me to refer you to the provisions of law applicable to your question as a matter of information.
CRIMINAL PROCEDURE-Verdicts (Unofficial) Georgia follows the common-law rule in criminal cases requiring a unanimous verdict for conviction.
October 6, 1949 Mr. Ralph S. Daniels Research Counsel
This will acknowledge your letter of September 28, 1949, in which you desire information regarding any change in the substantive and procedural phases of criminal law in Georgia. Enclosed are the only com,prehensive changes in criminal law and procedure in Georgia in recent years. These changes were passed by the Georgia State Legislature, 1949 session.
With regard to the question of the requirement of the unanimous verdict in criminal cases, Georgia follows the common law. I cite to you the case of Ponder vs. State, 11 Ga. App. 60, opinion by Justice Russell, in which is contained the following:
"Under our law no one can be deprived of his life, liberty, or property except upon the unanimous verdict of the jury impaneled to pass upon the issue."
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
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DIVORCE AND ALIMONY-Divorce (Unofficial) Divorce may be had on grounds of insanity of defendant.
August 30, 1949 Reverend W. M. Bayne
I am. in receipt of your letter of August 10, 1949 in which you request information regarding the divorce laws of this State, and particularly as applied to insane persons.
As far as I have been able to ascertain, there is no statutory law upon the subject. However, the case of HugUJley vs. Huguley, 204 Ga. 692, deals with this problem in certain respects. In that case Justice Duckworth held as follows:
"The exception to the judgment overruling the demurrer to the petition is without merit. While this court has held that an insane person can not prosecute a suit for divorce by a guardian (Phillips v. Phillips, 203 Ga. 106, 45, S. E. 2d, 6'21), that rule is bottomed upon the proposition that it is peculiarly a personal decision of the petitioner himself as to whether or not he will condone the acts of his spouse or sue for a divorce. That reasoning does not apply in a case where the petitioner is sane but the defendant is insane. The petitioner has the right to make his choice as to whether or not he shall condone or seek a divorce and the condition of his spouse at the time of such decision can not affect this right of the petitiontr any more than if it were a suit on any other contract. The argument is made on behalf of the insane defendant that the petitioner should not be allowed to sue for a divorce because the defendant, if sane, might choose either to defend or not defend the same, and that her guardian could not know h~:or will in that respect. We can not agree with this contention. It is not a matter of whether or not she defends the suit, but whether or not the petitioner is entitled to the relief sought. 17 Am Jur. 265; 27 C. J. S. 597, 672, Sees. 55, 90. We must also notice our Code, Sec. 30-102 (2), which makes insanity at the time of marriage a ground for divorce. If under the law one is not allowed to prosecute a suit for divorce against an insane spouse, then the only opportunity one would have of obtaining a divorce on this ground would be when and if his spouse regained sanity; otherwise, his marriage could not be dissolved, although thtre existed a specific ground upon which the law declares that he might obtain a divorce. The decision in Zeigler vs. Zeigler, 149 Ga. 508 (101 S. E. 183), cited and relied upon by the plaintiff in error, does not require a different ruling. The actual ruling there was that, since the ground upon which the divorce was sought was three years' continued wilful desertion, and it appeared that the defendant became insane before the three years had elapsed, a divorce upon the ground alleged was unauthoriz~:od. The further ground of demurrer, to the effect that the allegations of cruelty were insufficient, is likewise without merit. . . . .''
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
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EDUCATION-City Appropriation (Unofficial) A city may not make appropriation out of general funds of city for improving school campus not property of city.
February 15, 1949 Honorable A. Thomas, Principal Surrency High School
In your letter of February 11, 1949, you asked my opinion as to the legal right of a Georgia town to spend money from the city treasury on school property that is located within the city, or make an appropriation for improvements on such property. Mor: particularly, you seemed to desire to know if the City Council of Surrency might legally make an appropriation for the purpose of improving the school campus.
I presume the school campus in question is not property of the City of Surrency.
First, in large measure, each city and town is variously governed and controlled by its own code of laws contained in its own charter granted by the General Assembly. These charters must generally be consulted to determine the rights and powers of the respective municipal corporation. Matt:rs not defined in a town's charter may be controlled by the rather limited number of common law rules, and a few other provisions added by statute.
It would appear that the City of Surrency, under its charter, (Georgia Laws 1911, page 1577, and Georgia Laws 1924, page 715), has no authority to make an appropriation for the purpose of improving the school campus out of the g:neral funds of the city, and further, that under Sections 92-4101, 4102 and 4103, it would be illegal for a municipality to make an appropriation out of their general fund for the purpose of improving school property not belonging to the municipality.
I think it possible that your city, by following Section 92-4104 of the Georgia Code, may vote to collect an additional tax for this extraordinary expense and, by following also Code S:ctions 69-601 through 69-612 with particular regard to Section 69-605 which provides that any school board may join with any municipality in conducting and maintaining recreational systems, including a playground, etc., you may well be able to work out a satisfactory and legal method by which your city may participate in improving your school campus.
Under the Constitution and Jaws of this State, the Attorn:y General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the inter:sts of the State. However, it is a pleasure for me to refer you to the provisions of law applicable to your question as a matt:r of information.
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EDUCATION-City Boards (Unofficial) A provision in a city charter that "no member of the school board shall succeed himself until at least one term shall have elapsed since his last service" not only prevents him from serving again within that period from the same ward, but also from any ward.
June 1, 1949 Honorable T. J. 5yfan City Attorney City of Commerce
I am in receipt of your letter of May 30, 1949 in which you request my opinion regarding an amendment to the charter of the City of Commerce which dealt with the city board of education.
This amendment may be found in Georgia Laws, 1933, page 910. It amended Section 40 of the Act incorporating the City of Commerce.
This Act is found in Georgia Laws, 1909, page 655 and Section 40 thereof is found at page 674.
Section 40 provides that there shall be one member of the city board of education from each of the four wards and one member of the board from the city at large. The 1933 amendment adds the following to Section 40:
"No member of the school board shall succeed himself until at least one term shall have elapsed since his last service, and that a secretary shall be elected by th board of education; and all vacancies that occur by death or otherwise shall be elected by the council, instead of being appointed by the Mayor."
The term of office of each member is for a period of five years. I can see that the amendment might possibly be interpreted in more than one way. I believe, however, that we can determine the answer to your problem by arriving at the intent of the Legislature in passing this amendment. The pertinent part of the amendment provides that "no member of the school board shall succeed himself until at least one term shall have elapsed since his last service". This would definitely preclude, for example, a person who has served a term as a membe:r from the first ward from again serving as a member until after a period of five years had elapsed from the end of his term. It is my belief that the intent of this amendment goes even further and would preclude a person who has served as a member of the board from again serving as a member in any capacity until a period of five years had elapsed from the end of his term of service. It would seem that the Legislature intended that no person serve two successive terms. This is borne out by the fact that the amendment says "succeed himself". I am of the opinion that the prohibition in the amendment applies to the person rather than to the office. Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
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EDUCATION-County Boards (Unofficial) A member of the County Board of Education may also serve as a Justice of the Peace.
February 18, 1949 Honorable H. L. Abrams
This will acknowledge receipt of your letter of recent date making inquiry as to your eligibility to serve as a justice of the peace and at the same time serve as a member of the County Board of Education.
I understand that your position on the Board is a county office. The Code provides that no person shall hold more than one county office at the same time. Following is the Code Section on the subject:
"No person shall hold, in any manner whatever, or be commissioned to hold at one time, more than one county office, except by special enactment of the legislature; nor shall any commissioned officer be deputy for any other commissioned officer, except by such special enactment." (Sec. 89-103).
I would not construe a notary public ex officio justice of the peace as being a county officer. This officer has heretofore ruled that a justice of the peace is not a county officer.
In the case of McBrien v. Starkweather, 43 Ga. App. 818 (4), it is said: "A constable is not a county officer; and therefore a coroner, as a county officer, is not, by virtue of section 259 of the Political Code of 1910, which prohibits any person from holding two county offices at the same time, prohibited from holding the office of constable.'' I am of the opinion that you would be eligible to serve as a member of the County Board of Education and at the same time serve as a notary public ex officio justice of the peace, since they are not both county offices. Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the interests of the State. However, it is a pleasure for me to refer you to the provisions of law applicable to your question as a matter of information, and I trust they will be of benefit to you.
EDUCATION-County Boards Title to land conveyed to Academy before incorporation of town, which later became part of independent school district of incorporated town and subsequently, in turn a part of the local school district and a part of the county system, is vested in the County Board of Education.
March 16, 1949 Honorable M. D. Collins State Superintendent of Schools
I have a copy of your letter of March 7 to the Honorable W. G. Beall, County School Superintendent, Hazlehurst, Georgia, with which you also enclosed Mr. Beall's letter to you of the 4th, together with Mr. Beall's correspondence from Attorney C. W. Heath, and a copy of a deed dated the 24th of March, 1877, from D. H. Moody.
The problem set forth by Mr. Beall is substantially as follows: First, it
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seems that on the 24th day of March, 1877, D. H. Moody conveyed by waTranty deed to certain named individuals as trustees of the Hazlehurst AcadE:my and their successors, an acre of land "to be used (for) alone for school and Masonic purposes." It then appears in Mr. Beall's letter that this propE:rty became a part of the independent school system of the City of Hazlehurst, Georgia. It does not appear whether or not the trustees of the Hazlehurst Academy transferred this property to the independent school system of Hazlehurst or whether the independent school system of the City of Hazlehurst was the successor to the Hazlehurst Academy. It does appear, however, that the deed from Moody to the trustees of the Hazlehurst Academy was executed before the Georgia Legislature incorpo:rated the town of Hazlehurst in 1889.
At a later date, according to Mr. Beall, by vote of the people, this property became part of the county system as a local school district, and then an Act of the Legislature abolished local school districts and all rights in the school property became the property of the county board of education. It appears that the county board now plans to erect a new building on the acre of land in question, and Mr. Beall says that some people are afraid that the city of Hazlehurst might at some later date claim the property in question since no deed has ever been made to the local trustees or the county board.
You advised Mr. Beall in your letter of March 7 that it was your understanding that when a city or independent school system by vote of the people is voted to become a part of the county school system, all school grounds, buildings and equipment are automatically transfHred by this favorable vote to the district trustees, which means the titles are in the county board of education.
I am in substantial accord with your opinion as given to Mr. Beall. Unless there is something in the history of this property of which we have no notice, there is no indication that the property in question ever belonged to the city of Hazlehurst as such. By the aforesaid deed of M~ody the p;roperty went to the trustees of the Hazlehurst Academy and their successors before the city of Hazlehurst was in existence.
Though it is not clear from the information we have, I think it may safely be presumed that the independent school system of the city of Hazlehurst was the successor to the trustees of the Hazlehurs: Academy and that even without a formal deed from the trustees to the independent school system of Hazlehurst, the proper:y passed to the trustees of the independent school system of Hazlehurst, and that even by prescriptive right alone the trustees of the independent school system of Hazlehurst, as distinguished from the ci:y of Hazlehurst itself, acquired title to the property.
When the citizens of the independent school system of Hazlehurst, presumably in accordance wi'h Chapter 32-12 of the Georgia Code, voted to repeal their independent school system, the result was to make the territory included in said independent system become a part of the county school system and the territory formerly included in such independent system became and constituted a school district of the county in which it was located. This would then place the title to the property in question in the trustees of the Hazlehurst school district. Then by the Constitution of 1945 and by Georgia Code Annotated Supplement, Section 32-1101, each county was made to compose one school district and confined the control and management to the county board of education. And by Section 32-1105 and Section 32-1123, the property of each local school district was turned over to the county board of education.
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It would seem, therefore, that by operation of the s:atutory Acts of the Legislature cited above, the title to the property in question has passed to and is now vested in the county board of education and that the city of Hazlehurst could not successfully claim any title to the property.
The only possible cloud which I can imagine on the title now being in the county board is that the trustees of the Hazlehurst Academy or the trustees of the former independent Hazlehurst school district, had by some means conveyed or attempted to convey this property to the city of Hazlehurst, as such. There is no indication in the information which you sent me that any such conveyance was made.
EDUCATION-County Boards (Unofficial) A member must be not only a citizen of the county but also a freeholder therein.
March 29, 1949 Mrs. Hugh L. Faulk
I have your letter of March 23, 1949, in which you ask if a member of a County Board of Educa:ion has to be not only a citizen residing in said county, but also a freeholder owning property in said county. You stated further that your question was in particular regard to the eligibility for membership on the Board of a c'tizen of your coun:y who owns no property in your county but is a freeholder, or property owner, in another county of the State.
As you know, the pertinent provision concerned with this matter is Section 32-902 of the Georgia Code Annotated which says, in part, that:
"The grand jury of each county shall from time to time, select from the citizens of their respective counties five freeholders who shall constitute the county board of education."
I find no cases which have decided the particular question which you ask, but I find that I stated in a prior opinion, as appears on page 128 of Opinions of the Attorney General 1945-1947, as follows:
"Under the Act of 1919 (Code Sections 32-901 and 32-902) each and every county composed one school district, which was confided to the control and managem,ent of a county board of education, which board of educat:on was selected by the Grand Jury from the citizens of the counties and constituted five. They were to be freeholders of the county. The term of their office was for a period of four years and until their successors were elected and qualified."
As there have been no changes in this law, I remain of the opinion that members of the Board must not only be citizens of the county, but also freeholders in said county.
Since under the law I am prohibited from giving official opinions to anyone other than the Governor and heads of the various State departments on matters pertaining to the interests of the State, this letter is not to be considered as an official opinion. However, it is a pleasure to cite to you the above provision of the law and to give you my personal views on the subject.
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EDUCATION-County Boards (Unofficial) A vacancy caused otherwise than by expiration of term shall be filled by the grand jury, if in session, for the unexpired term, or if not in session, by secret ballot of Board members until next session of grand jury.
April 13, 1949 Honorable A. M~ Greene
I am pleased to acknowledge your letter of April 12, 1949, in which you seek information concerning the appointment of a member of the County Board of Education.
I am prohibited from giving opinions to anyone except the Governor and the heads of the various Departments of the State Government on matters in which the State is involved, and anything I say in reply to your letter is to be considered as information and not binding upon anyone in any manner whatsoever.
Paragraph 1, Section 5 of Article 8 of the 1945 Constitution of Georgia provides:
"In case of a vacancy on said Board by death, resignation of a member, or from any other cause other than the expiration of such member's term of office, the Board shall by secret ballot elect his successor, who shall hold office until the next grand jury convr,nes at which time said grand jury shall appoint the successor member of the Board for the unexpired term. . . . . "
I construe the Constitution to mean that the grand jury is the appointing power of the members of the County Board of Education and that if they are in session at the time a vacancy occurs, it would be the duty of the grand jury at that time to fill the vacancy.
I also construe it to mean that if a vacancy occurs at a time when the grand jury is not in session and when it cannot make the appointment, there should be no vacancy between that time and the convening of the grand jury and, therefore, in such a case the above provision of the Constitution provides that the members of the County Board of Education by secret ballot shall elect a person to hold until the grand jury convenes, so that the grand jury can make the appointment for the unexpired term as contemplated by the Constitution.
EDUCATION--County Boards Authority to consolidate schools within the county system rests exclusively with the County Boards.
May 16, 1949 Hon. M. D. Collins State Superintendent of Schools
I am pleased to acknowledge your letter of Mlay lOth, in which you state the following:
"There is a great deal of interest now in the question of school consolidation. In a county school system, who has the authority to consolidate except the members of the County Board of Education? Does the State Board of Education have any authority for consolidating schools in a county school system:?"
The answer to your inquiry is contained in the following provisions of law: Section 32-909 of the Amended Code provides as follows:
50~
"The county boards of education shall have the power to purchase, lease, or rent school sites; build, repair or rent schoolhouses, ..... and make all arrangements necessary to the efficient operation of the schools. The ,ad Boards are invested with the title, care and custody of all schoolhou~e.3 or o.her property, with power to control the same in such manner as they think will best serve the interests of the common schools; and when, in the opinion of the board, any schoolhouse site has become unnecessary or inconvenient, they may sell the same in the name of the county board of education; such conveyance to be executed by the president or secretary of the board, according to the order of the board. . . . . . . "
Section 32-915 provides: "The board of education of any county shall have the right if, in their opinion, the welfare of the schools of the county and the best interests of the pupils require, to consolidate two or more schools into one school, to be located by said board at a place convenient to the pupils attending the same, the schoolhouse to be located as near the center of the district or districts as possible." From the above provisions of law, I am therefore of the opinion that the county board of education is vested with the authority to consolidate county schools when, in the opinion of the board, the same is to the best interests of the schools and the pupils of the county. This is a duty and responsibility which is vested in the county school board rather than the State Board of Education. Of course there are some restrictions on the power of a county board of education to consolidate schools. I am sure you are familiar with my opinion rendered to you under date of November 15, 1945, in which I held as follows: "A county board of education could not consolidate local school districts for the purpose of making the bonded district liable for bonds of the bonded district unless there had been separate elections in each district." For the full opinion, see OPINIONS OF THE ATTORNEY GENERAL, 1945-1947, page 126.
EDUCATION-County Boards A resolution providing for election of county Boards by the people and selection of County Superintendents by the Boards, containing an exception as to systems established prior to 1877, does not affect Glynn, Chatham, Rich or Bibb County.
May 20, 1949 Honorable M.. D. Collins State Superintendent of Schools
I have your letter of May 16, in which you state that the Honorable John C. Lewis, Representative from Hanco*ck County, asked you to secure an official opinion from me as to whether the recent Resolution which Lewis introduced in the Georgia House of Representatives, H. R. 79-512A, would in any way interfere with the Glynn County school program. You state that Lewis is under the impression that this measure as passed would not apply to Glynn, Chatham, Richm~nd, and Bibb Counties, but that he is anxious to have my opinion on this matter.
The House Resolution No. 79-512A to which Mr. Lewis referred, has never
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passed the House. The amended Resolution was favorably passed out of the Constitutional Committee on February 10, 1949, and read the second time in the House. It now appears on the calendar of the House to be taken up again in January.
As you know, it is a R,esolution proposing an amendment to the Constitution to provide for the election of County Boards of Education by the people and the selection of County Superintendents of Schools by the County Boards of Education, and it amends the Cons jtution by striking in their entirety Sections 5 and 6 of Article VIII thereof. The amendment to the Resolution which has been approved by the Committee and returned with the Resolution is for the addition of a Section to be known as Section 6A, which is as follows:
''Neither Section 5 or 6 of this Article shall apply to those publ:c school systems set forth in Section X of this Article."
The Article is Article VIII of the Constitution and Section X of Article VIII is as follows:
"Public school systems established prior to the adopt'on of the Constitution of 1877 shall not be affected by this Constitution."
The Counties of Glynn, Chatham, Richmond, and Bibb have public school systems established prior to the adoption of the Constitution of 1877, and it is my opinion that the aforestated proposed Resolution as amended would not interfere with their public school program if it is adopted as it now stands.
EDUCATION-County Boards (Unofficial) The County Board is the proper body to call a bond election for school purposes outside of independent school districts.
June 21, 1949 Hon. John H. Quarterman Attorney at Law
I am pleased to acknowledge your letter of June 3rd, in which you ask whether or not, under the provisions of the new Constitution, it is necessary for a bond election for school purposes outside of independent school districts to be called by the county board of education.
Of course you understand that the Attorney General is prohibited by law from rendering official opinions on county matters, and that anything said in this letter is to be treated purely as my personal opinion and is not binding upon the county board of education or anyone else.
In the case of Nelm.s vs. Stephens County School District, 201 Ga. p. 274, the Court held in headnote (6) that the county board of education was properly authorized to call an election for the issuance of bonds to build and equ'p school houses. If you have not already read this decision, I believe that you will find it throws much light on the local questions which you are now endeavoring to solve.
You also ask if such an election were called for the purpose of voting bonds, how much notice would have to be given, and what procedure would be necessary in order to comply with the law.
Following the Nelms decision, it would seem that the county board of education is the proper body to call such an election. The specific procedure to be followed in such instances is set forth in Chapters 87- 2 and 3 of the Code
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and the amendments thereto. I believe that the laws contained in this Chapter will give you the answer to the questions you have in mind.
I trust that the above provisions of law se~ forth herein will be of some benefit to you in working out a solution to these local school probL m ' It is always my sincere effort and desire to render any information or ~'"'rv:..:0 .ll<L I can to our local county officials.
Since my official authority is restricted by law to legal matters relating to the State government, my views in this letter must be accepted as unofficial and personal.
EDUCATION-County Boards (Unofficial) The Act of 1946 which was a general law, was designed to create a uniform system of appointing trustees, and therefore superseded the 1937 Act with wh"ch it is in conflict.
Augus~ 20, 1949
Honorable Osgood 0. Williams Attorney at Law
I am pleased to acknowledge your letter of August 12, 1949 requesting that I give you my personal views concerning the special Act of the General Assembly of Georgia, (Ga. Laws 1937, page 1457), relative to the Alexander s:ephens Institute at Crawfordsville, Georgia.
I have read the 1946 Act, (Ga. Laws 1946, pages 206-217), which is a general law covering the subject of County Boards of Education throughout the State.
Section 10 provides as follows: "The county Board of Education of each county, exclusive of those counties hvaing local school systems created prior to the adoption of the Constitution of 1877, may within thirty days from the enactment of this law appoint not less than three nor more than five local school trustees for each school in the county. Each person so appointed shall be a free holder and manifestly interested in education, and be a resident of the county where he is appointed. Each person so appointed shall have a term of four years, and should any vacancy occur due to death, resignation, change of residence from the county where appointed, or otherwise the county Board of Education shall, at its next regular meeting after such vacancy occurs, appoint a successor to fill said vacancy. The trustees so elected or appointed shall elect one of their members as chairman and another as secretary. All trustees shall serve without compensation; provided, nevertheless, the trustees of each School District as constituted prior to August 7, 1945, shall be the trustees of each school in said district until their respective terms expire." Section 11 provides as follows: "The duties of the school trustees appointed or elected by the county Board of Education, as aforesaid, shall be advisory in nature. They shall make recommendations to the county Board of Education as to budgets, emp~oyment of teachers and other au:horized employes, and as to other matters :relating to the school of which they are trustees. Such recommendations shall be merely advisory and the County Board of Education is not bound to observe or follow the same. They shall serve without compensation. The bonded treasurer of each
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consolidated or local school district now serving as such shall, within thirty days from the effective date of this Act, turn over to the county Board of Education all school funds now held by him or deposited in his name or in the name of the local or consolidated school district in any county or State depository, either derived from maintenance tax or from taxes levied to retire bonded indebtedness of the school districts in which he serves, and shall take a receipt therefor from the secretary of the County Board of Education, and shall also turn over to said Board all books, paper, receip':s, documents and other property belonging to the school district of which he is treasurer. Upon the failure of said treasurer to do so, the county Board of Education may, by mandamus, compel him to do so."
It is my personal view that it was the intention of the 1946 Act to do away with the system of electing local school district trustees throughout the State and to substitute in lieu thereof a system whereby the County Boards of Education may appoint not less than three nor more than five local school trustees flor each school in a county, and that the duties of such trustees are restricted to being advisory in nature, with powers to make recommendations to the County Boards of Education on budgets, employment of teachers, and other authorized employees, and other matters relating to the schools for which they are trustees.
In Montford vs. Allen, 111 Ga. 18, the Supreme Court of Georgia said: "A general law will not be so 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." In the case of Mayor of Montezuma vs. M.inor, 70 Ga. 191, the Supreme Court of Georgia said : "Unless particularly named, or necessarily from its terms therein embraced, a local or particular law is not repealed by a subsequent general law." I cite the above two authorities because you may be interested in them. H;owever, it is my view that it was the manifest intention of the General Assembly in passing the 1946 Act to create a uniform system of allowing the county Boards of Education in their discretion to appoint advisory trustees for each school in a county throughout the State, and that the 1937 Act in question is, therefore, in direct conflict with the provisions of the general law, and therefore ineffective. I trust that the above will be of some help to you in solving your problem. Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
EDUCATION-County Boards The responsibility of determining whether the father of a school child is a white man or a negro is upon the County Board of Education, whose finding may be appealed to the State Board of Education.
August 23, 1949 Dr. .M. D. Collins State Superintendent of Schools State Department of Education
I am pleased to acknowledge your letter of August 10, 1949 in which you request my opinion as follows:
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"I have recently had an inquiry as to whose responsibility it is to determine whether a school child's father is a white man or a Negro. I am wondering if this would not be the responsibility of the county health officials or if this is the responsibility of the county board of education, county superintendent of schools, State Board of Education or State Superintendent of Schools.
"If it is a non-medical official's responsibility, how would he or they be able to sc,cure experienced medical help to determine the right answer to this question'?
"The persons who raise this question did not want their school system mentioned until and unless a thorough investigation was going to be made, but they do want to know whose responsibility it is to make said investigation.
"This is the first time this question has ever been raised since I have been State Superintendent of Schools, and I shall greatly appreciate your advising me as to the person or persons upon whom this responsibility legally falls."
Article 8, Section 1, Paragraph 1 of the Constitution of the State of Georgia provides:
"System of common schools; free tuition, separation of races. The provision of an adequate education for the citizens shall be a primary obligation of the State of Georgia, the expense of which shall be provided for by taxation. Separate schools shall be provided for the white and colored races.''
Article 8, Section 2, Paragraph 2 of the Constitution of the State of Georgia provides that there shall be a State Board of Education, and Section 3, Paragraph 1 of Article 8 provides that there shall be a State School Superintendent, who shall be the executive officer of the State Board of Education.
Section 32-408 of the Code of Georgia provides in part: "The State Board of Education shall provide rules and regulations for the supervision of all public schools of this State; . . . . They shall make such rules and regulations as may be necessary for the operation of the common schools and for the administration of the common school fund." Section 32-501 of the Code of Georgia provides in part: "The State Superintendent of Schools . . . shall be charged with the administration of the school laws and general superintendents of business relating to the common schools .... Provided, there shall always be an appeaL from the State School Superintendent to the State Board of Education." Section 32-505 of the Code of Georgia provides in part: "The State Superintendent of Schools shall carry out and enforce all of the rules and regulations of the State Board of Education and the laws covering the schools receiving State aid .... Providing, of course, that all of his acts in this matter shall be subject to the approval of the State Board of Education... .'' Section 32-506 of the Code of Georgia provides in part: "It shall be the duty of the State School Superintendent to visit, as often as possible, the several counties for the purpose of examining into the administration of the school law .... inspecting school operations, and of doing such other acts as he may deem to the interest of popular education.''
Article 8, Section 5, Paragraph 1 of the Constitution of the State of Georgia provides in part:
"Authority is granted to Counties to establish and maintain public schools. within their limits. Each County, exclusive of any independent school system now in existence in a County, shall compose, one school district and shall be
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confined to the control and management of a County Board of Education. Article 8, Section 6, Paragraph 1 of the Constitution of the State of
Georgia provides that there shall be a County School Superintendent who shall be the executive officer of the County Board of Education.
Siection 32-1009 of the Code of Georgia provides in part: "The county superintendent of schools shall constitute the med;um of communication between the State Superintendent of Schools and the subordinate school officers ... It shall be his du:y to enforce all regulations, rules and instructions of the State Superintendent of Schools and of the county board of education according to the laws of the State and ~he rules and regulations made by the said board of education that are not in conflict with the State laws; . . " Section 32-901 of the Code of Georgia provides: "Each and every county shall compose one school district, and shall h~> confided to the control and management of a county board of education." Section 32-909 of the Georgia Code, relating to county boards of education, provides in part: " .... It shall also be the duty of said board of education to make arrangements for the instruction of the children of white and colored races in separate schools. They shall, as far as practicable, provide the same facilities for both races in respect to attainments and abili:ies of teachers, but the children of the white and colored races shall not be taught together in any common or public school. ..." Section 53-312 provides: "The term 'white person' shall include only persons of the white or Caucasian race, who have no ascertainable trace of either Negro, African, West Indian, Asiatic Indian, Mongolian, Japanese, or Chinese blood in their veins. No person, any one of whose ancestors has been duly registered with the State Bureau of Vital Sta:istics as a colored person or person of color, shall be deemed to be a white person." S;ection 79-103 of the Code of Georgia provides: "All Negroes, mulattoes, mestizos, and their descendants, having any ascertainable trace of either Negro or African, West Indian, or Asiatic Indian blood in their veins, and all descendants of any person having either Negro or African, West Indian, or Asiatic Indian blood in his or her veins, llha11 be .known in this State as persons of color." Section 32-910 of the Code of Georgia provides: ''The county board of education shall constitute a tribunal for hearing and determining any matter of local controversy in reference to the construction or administration of the school law, with power to summon witnesses and take testimony if necessary; and when they have made a decision, said decision shall be binding upon the parties. Either of the parties shall have the right of appeal to the State Board of Education, and said appeal shall be made through the county superintendent of schools in writing and shall distinctly set forth the question in dispute, the decision of the county board and testimony as agreed upon by the par~ies to the controversy, or if they fail to agree, upon the testimony as reported by the county superintedent of schools."
Section 32-912 of the Code of Georgia provides in part:
"The county super:ntendent of schools and county board of education shall make rules :o govern the county schools of their respective counties. . . . ."
Section 32-414 of the Code of Georgia provides:
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"The State Board of Education shall have appellate jurisdiction in all school matters which may be appealed from any county or city board of education, and its decisions in all such matters shall be f:nal and conclusive. Appeals to the Board must be made in writing through the county superintendents of schools, or the secretary of the Official Board of Independent Systems, and must distinctly set forth the question of Jaw, as well as the facts in the case. The Board shall provide by regulation for no:ic2 to the opposite party and for hearing on the appeal."
Section 32-937 of the Code of Georgia provides in part: ''Admission to all common schools shall be gratuitous to all children between the ages of six and 18 years residing in the districts in which the schools are located. Colored and whi e children s)lall not attend the same schools; and no teacher rece:ving or teaching white and colored pupils in the same schools shall be allowed any compensation out of the common school fund.... " In the case of Keever vs. Board of Education of Gwinnett County, 188 Ga. 299, the Supreme Court of Georgia held; "The management and con:rol of the public schools of the county is confined to the county board of education, and it is the tribunal for hearing and adjudicating all local controversies relating to construing and admin'stering the school law, and is given wide discretionary powers." It is my opinion that it is the responsibiiity and duty of the County Board of Education to hear and to adjud'cate all local controversies relating to construing and administering the school law, a part of which is cited above, their decision of course being subject to review by the S~ate Board of Education, and that it is the responsibility and duty of the County Board of Education, the County Superintendent of schools, the State Board of Education and State Superintendent of schools to administer and see that the school laws of the State are properly carried out. The County Boards of Education as a tribunal for hearing and determining matters of local controversy in reference to the construction and administration of the school laws has the power to summon witnesses and take testimony, if necessary, which would include medical, expert, legal and such other competent evidence or proof that may be ne,cessary to determine any actual issue raised or in controversy before them.
EDUCATION-County Boards Equalization funds made available to a County for its schools may not be used for completing a school building.
September 20, 1949 Honorable M. D. Collins, State Superintendent of Schools
I am pleased to acknowledge your letter of Sep~ember 8, 1949, in which you state:
"I am herewith attaching copy of letter dated September 7 which I have just received from Honorable Robert Pinkston, Terrell County Superintendent of Schools, who wishes me to secure from you an official opinion as to whether or not the Terrell County Board of Education may spend part of the recent new money made available to schools of Terrell County for completing a school
510
building. These funds, as I am sure you will remember, were distributed to the school systems under the head of 'equalization funds' and without any strings
attached to said funds."
The question propounded by you is controlled by the opinion of the Attorney General rendered to you on July 25, 1939, wh'ch states, after citing authorities, as follows:
"It will be noted that this statute confers no authority or power upon the &tate Board of Education to use any of said funds for the purpose of building school houses in local school districts, and I am aware of no other statute which confers power and authority upon the State Board of Education to use any of its funds for the purpose of making a grant to any local district with which to build a school house.
"Provision has already been made by statute for the building of school houses, and the power and authority with respect to such matters is vested in the various eounty boards of education. Section 32-909 of the Code provides in part:
'In respect to the building of schoolhouses, the said board of education may provide for the same, either by labor on the part of the citizens of the subdistricts, or by a tax on their property.'
"If the county board decides that school houses shall be built by tax upon the property of the school dis~rict, the provisions of Chapter 32-14 are controlling in the matter where bonds are to be issued;"
I might also call your attention to the opinion of the Attorney General dated May 19, 1947 to Honorable Glaude Purcell, Assistant, Division of Administration, State Board of Education.
EDUCATION--County Boards M;embers of the County Boards shall be selected from the portion of the county not within an independent school district.
September 20, 1949 Honorable M. D. Collins .State Superintemdent of Schools
I am pleased to acknowledge your letter of September 15, 1949, in which :you sta~e:
"At the meeting of the State Board of Education today, September 15, 1949, an appeal from the decision of the Wialton County Board of Educa~ion was eonsidered by the 8tate Board of Education.
"The attorney for the appellants alleged that the members of the Walton County Board of Education have not legally been selected or elected; that one of the members of said Board now lives within the city limits of Social Circle and that Social Circle has an independent school system., therefore this member of the Walton County Board of Education is sening illegally. Also, since the County Board of Education elected the present County Superintendent of Schools to serve an unexpired term, that said Superintendent was not legally elected.
"Therefore, we would greatly appreciate having your opinion as to whether or not the Walton County Board of Education and .County Superintendent of Schools have been legally selected or elected. If not, we will be unable to
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transmit other school funds to this county until this error (if there be an error) is corrected. We shall be deeply gra~eful to you for as early a ruling on this important matter as you can possibly make."
Article 8, Section 5, Paragraph 1 of the 1945 Constitution of Georgia provides, in part :
"Authority is granted to Counties to establish and maintain public schools within their limits. Each County, exclusive of any independent school system now in existence in a County, shall compose one school district and shall be confined to the control and management of a Coun:y Board of Education. The Grand Jury of each County shall select from the citizens of their respective Counties five freeholders, who shall constitute the County Board of Education. Said members shall be elected for the term of five years except that the first election of Board members under this Constitution shall be for such terms that will provide for the expiration of the term of one member of the County Board of Education each year. In case of a vacancy on said Board by death, resignanation of a member, or from any other cause other than the expiration of such member's term of office, the Board shall by secret ballot elect his successor, who shall hold office until the next Grand Jury convenes at which time said Grand Jury shall appoint the successor mtem:ber of the Board for the unexpired term. The memibers of the County Board of E.duc'ation of such County shall be selected from that portion of the County not embraced within the territory of an independent school district. . . "
Section 32-903 of the 1933 Code proviles:
"The grand jury in selecting the members of the county board of education shall not select one of their own number then in session, nor shall they select any two of those selected from the same militia district or locality, nor shall they select any person. who resides within the lim,its of a local school system operate,d inde,pendent of the county beard of education, but shall apportion members of the board as far as practicable over the county; they shall select men of good moral character, who shall have at least a fair knowledge of the elementary branches of an English education and be favorable to the common school system. W)'lenever a member of the board of education moves his residence into a militia district where another member of the board resides, or into a district or municipality that has an independent local school system, the member changing his residence shall immediately cease to be on the board and the vacancy shall be filled as required by law."
It is clear from the above Constitutional and statutory provisions that members of the county board of education shall be selected from that portion of the county not embraced within the territory of an independent school district.
In case of a vacancy in the office of county school superintendent, the county board of education elects a county school superintendent for the unexpired term.
Of course, you understand that the procedure for determining whether or not a person is the de jure holder of an office is by the writ of quo warranto, and that it is not within my jurisdiction to pass upon th~ eligibility of a person to hold public office, since this responsibility is vested in the courts for such purposes, and the statutory and Constitutional provisions cited herein are for
512
the information of yourself and the State Board of Education, and not to be considered as holding that any person is ineligible to hold office.
I might also call to your attention that it is the general rule that the acts of a de factor officer are valid.
EDUCATION-County and Independent Systems 1. Boards of County and Independent School Systems are required to carry liability insurance on school buses covering injury to children. 2. Boards are authorized to include liability coverage of members of the public, but are not themselves liable. 3. The extent of coverage is within the discretion of the respective Boards.
April 29, 1949 Dr. M. D. 'Collins State Superintendent of Schools State Department of Education
I am in receipt of your letter of April 25, 1949 in which you ask three questions concerning House Bill No. 406 which was passed at the recent session of the General Assembly.
Your questions are as follows: 1. "Are county and independent school systems' boards of education required to carry liability insurance on school buses under House Bill 406 or Act 271 of the 1949 General Assembly of Georgia?" 2. "If you consider this act mandatory, will you also outline the extent and types of coverage required." 3. "... is it legal for boards of education to expend state or local public funds for the payment of liability insurance premiums?" As to question number one, I refer you to Section 1 of the Act which reads as follows: ''The various school boards of the counties, cities and independent school systems employing school buses, are hereby authorized and required to cause policies of insurance to be issued insuring the school children riding therein to and from school against bodily injury or death at any time therefrom resulting from an accident or collision in which said buses are involved. The amount of such insurance shall be within the discretion of the respective boards."
That section states that the various school boards are required to cause policies of insurance to be issued. Therefore, it seems that they have no discretion in the matter but must take out insurance.
As to question number two, the type coverage required is set out in the Act itself. I again refer you Section 1 of the Act and also Section 3 which reads as follows:
"Be it further enacted, that such boards are hereby authorized to cause a provision to be inserted in said policies insuring the members of the general public against personal injury or death or damage to property resulting from the negligent operation of said buses. Nothing, however, in this law shall be construed as imposing legal liability upon such boards on account of such accidents. Wlherever an insurance company issues a policy containing such a provision, the company shall be estopped to deny its liability thereunder on account of the non-liability of said board."
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The ex~ent of cove1age may be found by referring to the last sentence of Section 1 which says, "The amount of such insurance shall be within the discretion of the respective boards."
In order to answer question number three, I would of necessity become involved in the determination of whether or not House Bill No. 406 is con-
stitutional. It is contrary to the policy of the Attorney General to declare an
Act of the General Assembly to be either constitutional or unconstitutional, inasmuch as that is the final perogative of the Courts of this State. Every Act of the General Assembly is presumed to be constitutional until declared otherwise by a court of competent jurisdic';.ion.
EDUCATION-lnde.pendent School Systems A special school law may only be annulled pursuant to election, and thereupon the County Board shall arrange for the operation of the former independent school system as part of the public school system.
May 16, 1949 Ron. M. D. Collins State Superintendent of Schools
I am pleased to acknowledge your letter of May lOth, in which you state the following:
"There has been a good deal in the press lately about indep.enden~ school systems merging with county school sys~ms. Some people have intimated that it is the legal responsibility of the S1ta':e Board of Education to merge independent systems with county systems. Therefore, I would appreciate your giving me your official interpretation of Cod2 Section 32-1201."
The provision of law which you refer to above, provides in par; as follows: "32-1201. Whenever the citizens of a municipality or independent school district authorized by law to establish and maif!tain a system of schools by local taxation, in whole or in part, and which is operating a syscem of public schools independent of thE; county school system, wish to annul their special school law and become a part of the county school system, they shall present and file with the mayor or chief executive officer of the city a petition signed by one-fourth of the qualified voters of their territory, and said mayor or chief executive officer shall then within not less than 20 days and not more than 60 days thereafter call an election...." Section 32-1202 provides: "When the results of said election are declared and published in favor of repealing such independen" School system, making the territory included in said system thereby to become a part of the county school system, said independent or local school system shall continue to function unders its local laws, organizations, and regulat ons un~il the county board of education shall arrange for the operation by them of such school or schools within said local system as a part of their public school system." The above provisions of law set foxth the procedure for the merger of an independent school system with the county school system, and provide that the county board of education shall arrange for the operation of such local system as a part of the county public school system. This is a function of the county board of education and not the State Board of Educa.ion.
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The State Board of Education has general supervision over the common schools of this State as set forth in Section 32-408. This provision of law provides as follows:
"The State Board of Education shall provide rules and regulations for the supervision of all public schools of this State; they shall provide a course of study for all common and high schools receiving State aid and may, in their discretion, approve additional courses of study set up by the local units of administration; provide for curriculum revisions and for the classification and certification of teachers. They shall make such rules and regulations as may be necessary for the operation of the common schools and for the administration of the common school fund."
While Code Section 32-408, sup,ra, clearly gives the State Board of Education general supervision over the common schools of this 'State and contains no inhibitions against said Board making suggestions or recommendations as to the advisability of merging independent school districts with county school systems, nevertheless, the final dE>cision in determining the question of merger is vested exclusively in the qualified voters residing within the municipality or district as provided for in Section 32-1201, supra.
In your letter you refer to certain matters appearing in the press, together with intimations made by certain unnamed people to the effect that it is the legal responsibility of the State Board of Education to merge independent systems with county systems. You do not state any basis of fact for these statements, and of course, without having the benefit of such facts, I cannot go further into this aspect of your inquiry. Since the State Board of Education is directly involved in this question, it is my suggestion that you contact the Chairman or some other member of the Board and the three of us can have a personal conference concerning any additional facts or other data regarding this matter. If you will call me, I will be glad to arrange a meeting date that w1ll suit your convenience as well as that of the person representing the State Board of Education. I believe that it is always a good idea for all State officials interested in a particular issue to come together in a personal conference in order to fully develop all the facts and circ*mstances involved. It will be my pleasure to give you and the State Board of Education the benefit of my legal views in reference to any additional facts or data which may be developed at such conference.
EDUCATION-Independent School Systems IndependE>nt school systems may contract with County Boards for the purpose of receiving a greater allotment of State-paid teachers than would normally be received.
May 20, 1949 Hon. George P. Whitman, Jr., Chairman State Board of Education
I am pleased to acknowledge your letter of May 12th, in which you state the following:
"A number of independent school systems in this State have entered into contracts with the county board of education, all of which follow the same pattern and for the purpose of receiving a greater allotment of State paid teachers
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and, consequently, more State funds than they would normally receive under the provisions of school law as set forth in Code 'Sections 32-608 and 32-609.
"Please advise me whether or not this type of contract is permissible under the provisions of law as stated above, or under any other provision of law."
Your question is answered by Section 2-7201 of the Constitution of Georgia, which provides as follows:
"Contracts authorized.-County Boards of Education and independent school systems may contract with each other for the education, transportation, and care of pupils."
Therefore, I am of the opinion that contracts made within the purview of the above provision of law are valid, and that the teacher allotment as set forth in Code Sections 32-608 and 32-609 would be governed by the provisions and terms of such contracts.
EDUCATION-Libraries (Unofficial) Libraries are educational, rather than recreational, projects.
April 5, 1949 Honorable J. H. Chaffin
I have your letter of March 19, 1949, in which you ask for my opinion as to whether or not a county library is educational or recreational, or a combination of the two.
I find that Sec:ion 32-2606 of the Georgia Code Annotated Supplement provides, in part, that
"It is hereby declared to be the policy of the State as a part of the provisions for public education to promote the establishment and development of public library service throughout the State."
Section 32-2706 of the Georgia Code Annotated Supplement also provides~ in part, that
"Political subdivisions, other than municipal corporations, are authorized. to establish and maintain public libraries for purposes of education."
It seems, therefore, that any county library established and conducted as provided for in Chapters 32-26 and 32-27 of the Georgia Code Annotated Supplement, are for the purposes of education, and that such recreation as devolves therefrom is a by-p,roduct.
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone other than the Governor and the heads of the various State departments upon matters pertaining to the interests of the State. However, it is a pleasure to cite to you the above provisions of law, and I trust. that these will be of benefit to you.
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EDUCATION-Post Schools (Unofficial) Georgia school funds are not available for operation of schools on military reservations.
February 21, 1949 Mr. W. C. Jones County School Superintendent
In your letter of February 15, 1949, you stated that you had been notified by an officer of the Third Army that an effort would be made to have Local Public School Systems operate Post Dependent Schools starting with the fiscal year 1950, and that the officer questioned the possibili:y of obtaining State money for the operation of Post !Schools.
In turn, you have asked me for a ruling stating whether or not educational funds may be used for the operation of schools on a mili:ary reservation.
Though it is not permissible for me under the laws of Georgia presently governing my department to give an official ruling at this time in this matter, I am glad to advise, however, that I find nothing in the Georgia law which tends to authorize the expenditure of State educational funds for '.:he operation of schools on military reservations.
The situation may vary with different military reservations depending on the terms of the grant and the grantor of property ceded to the Unit6d States for military reservations.
Seemingly, a general principle as found in 20 Corpus Jur:s 33, is that land which has been ceded by the State to the United States for the use of some department of the general government, without any reservation of jurisdiction except the right :o serve civil and criminal processes thereon, ceases to be a part of the State. Further, in 61 Corpus Juris 17, we find the statement that it is held that except when, and only to the extent that, the taxing power is reserved to the State, territory ceded to the United States by a 'State or sold to the Uni'_ed States by consent of the State for military or naval reservations, becomes as much without the jurisdiction of the State for taxing purposes as any other foreign territory.
It would seem, therefore, tha; military rese1 vations ceded to the United States Government without specif'c reservations or limitations to the contrary, cease for all practical purposes to be a par~ of the State of Georgia, any more, say, than a United 'States military reservation in the Canal Zone, and hence the use of State educational funds for operation of schools on such a military reservation would be unauthorized.
I also call your attention to Article 8, Section 1 of the State Constitut'on, to wit:
"The provision of an adequate educa:ion for the citizens shall be a primary obligation of the State of Gccrgia, the Expense of which shall be provided for by taxation. Separate schools shall be provided for the wh:te and colored races."
The implication from the foregoing Corpus Juris Sections and the case of Darbie v. Darbie, 195 Ga. 769, is that persons domiciled on a military reservation do not by reason thereof acquire citizenship in the State of Georgia.
In accordance with the Constitutional provision above referred to, the scheme of our laws relating to adequate education in this !State is that the privileges and benefits afforded by school systems as a result of taxation shall be extended freely only to the citizens of this State. That is to say, children
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of parents who are residents of this State and who contributed to the support of such schools by the payment of taxes imposed by our statutes. You might see in this connection also the case of Irvin v. Gregory, 86 Ga. 605, 615 and Jolly v. Catoosa County Board of Education, 171 Ga. 193.
Under &ect'on 32-909 of the Anno~ated Code of Georgia of 1933 (1947 Pocket Part Supplement), the County Board of Education is vested with title, control, and supervision of all school property. School property owned by or ceded to the Federal Government could not be under the jurisdiction of the County Boards of Education of the counties in which such prop,erty is located, and as a consequence, the County Boards involved might not be in position to enforce our Constitutonal provision requiring separate instruction for white and colored races, which seems to be contrary to the policy of the United States military authorities.
Under Article 8, Section 5, Paragraph 1 of our Cons:itution, and Code Section 32-605, the several counties of the State and the various independent school systems established by law shall be the local units of administrat:on. Article 8, Section 7, Paragraph 1 of the Constitution seems to imply that no more independent school systems other than those now in existence shall be established. It would appear, therefore, that a military reservation could not be a part of our &ta~e in such manner as to be a part of or constitute a local unit of administration of our State public school system. Section 32-614 of the Annotated Code of Georgia of 1933 (1947 Pocket Part Supplement), sets ou: how our common school funds shall be used, and it permits of no expenditure outside of our State public school system.
By Article 7, Section 1, Paragraph 2, subparagraph 1, and Article 7, Section 1, Paragraph 3, it would seem that all taxation shall be for public purposes only, and that an appropriation by the General Assembly of any funds of the State, whether educational or not, for the operation of schools on a military reservation might be a donation or a gratuity forbidden by our Constitution.
My personal opinions as s:ated here seem to be in accord with an opinion of the Honorable Ellis Arnall, when he was Attorney General, given to the &tate Superintendent of Schools on April 24, 1942, which involved to a rmited extent the question which you have asked.
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone other than the Governor and the heads of the various State departments upon matters pertaining to the in'.:erests of the State. However, it is a pleasure to cite to you the above provisions of law, and trust that these will be of benefit to you.
EDUCATION-State Board In the event of dereliction by a Department head or employee, final action
is in the discretion of the State Board, although the Superintendent of Schools may make recommendations which are entitled to great weight.
M:ay 18, 1949 Hon. George P. Whitman, Jr., Chairman State Board of Education
I am pleased to acknowledge your letter of M.ay 17th, in which you state the following:
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"Shall appreciate your glVmg me a ruling on the exact meaning of Code
Section 32-410, Control of Employees. "Does this mean that even though a Department head or employee is
derelict in his duties, that unless the Sta.e 1Superintendent of Schools recommends their dismissal that the State Board of Educatlon is powerless to do anything about it? If it is to be assumed that the State Board of Education has no jurisdiction over employees without the recommendation of the Superintendent of Schools, then the State Board's functioning would be meaningless in this matter and it would rest entirely in the hands of the State Superin-
tendent." Before examining Section 32-410 which relates to the control of employees
of the State Department of Education, we shall direct our attention to the constitutional and statutory provisions relating to the authority of the &tate Board of Education and the State Superintendent of Schools.
Both the !S:ate Board of Education and the State Superintendent of Schools are const:tutional officers. Section 2-6501 of the 1945 Constitution provides in part, as follows:
"There shall be a State Board of Education, composed of one member from each congressional district in the State, who shall be appointed by the Governor, by and with the advice and consent of the Senate. . . . . The said State Board of Education shall have such powers and duties as provided by law and existing at the time of the adop ion of this Constitution, together with such further powers and duties as may be hereafter provided by law."
In reference to the State School !Superintendent, the Constitution provides in Section 2-6601 as follows:
'"There shall be a State School Superintendent, who shall be the e1<ecutive officer of the State Board of! Education, elected at the same time and in the same manner and for the same term as that of the Governor. The !State School Superintendent shall have such qualifications and shall be paid such compensation as may be fixed by law. No member of said Board shall be eligible for election as State School Superintendent during the time for which he shall have been appointed."
In order to specifically determine the powers and duties of the State Superintendent of Schools and the State Board of Education, it is necessary to examine the statutes passed in pursuance of the above constitutional provisions. It is sufficient at this time to note that the Constitution makes the &tate School Superintendent the executive officer of the State Board of Education. In other words, the Superintendent is the administra'jve officer of the State Board under the terms of the Constitution.
!Section 32-504 of the Amended Code provides as follows: "The State Superintendent of Schools shall be the executive secretary of the State Board of Education, and the administrative officer of the State Department of Education. He shall enforce and admin;ster the regulations adopted by the State Board of Education." It is clear from the above statute which was enacted by the Legislature in 1937, that the Superintendent of :Schools is designated as the administrative officer of the Department of Education, and that his primary duty is to enforce and administer the regulations adopted by the State Board of Education. The duties of the State School Superintt:ndent are set forth in more detail in Section 32-505 of the Code, which provides as follows:
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"The State Superintendent of Schools shall carry out and enforce all the rules and regulations of the State Board of Education, and the laws governing the schools receiving State aid; he shall from time to time make such recommendations to the State Board as may affect the welfare and efficiency of the public schools; he shall have authority to suspend a county superintendent of schools for incompetency, wilful neglect of duty, misconduct, immorality or the commission of crime involving moral turpitude: Providing, of course, that all of his acts in this matter shall be subject to the approval of the State Board of Education, and the party so suspended may appeal his case to the State Board, whose decision shall be final." (Emphasis ours.)
The above statute has been the law of th's State since 1919, and clearly shows that the primary duty of the State Superintendent of Schools is to "carry out and enforce all the rules and regulations of the 1State Board of Education and the laws governing the schools receiving State aid." Even as to.his authority to suspend a county superintendent of schools for cause, such action 'is subject to the approval of the State Board of Education. In other words, the State Board of Education even in this instance, has the final authority over the acts of the State Superintendent of Schools nad can over-ride his previous action if the Board deems such action proper.
To the same effect, see Section 32-501 of the Code, which provides in part as follows:
"The 1State Superintendent of Schools shall be elected by the people at the same time and in the same manner as the Governor and Statehouse officers are elected. . . . . . He shall be charged with the admin1stration of the school laws and general superintendence of the business relating to the common schools...... Provided, there shall always be an appeal from the State School Superintendent to the State Board of Education."
The above statute is simply in keeping with the general trend of the
school laws to the effect that the acts of the State School Superintendent are
always subject to appeal and review by the State Board of Education, whose action shall be final. In the case of Board of Education of Long County, et. al. vs. Board of Education of Liberty Co.unty, 173 Ga. p. 203, the Supreme Court of Georgia held that an aggrieved party in reference to a controversy arising
in the administration of the common school system had a right to appeal from
the decision of the county board of education "to the State School Superintendent, and from the judgment of the :State School Superintendent to the State Board of Education, whose judgment should be final." The action of the State School Superintendent is never conclusive or final in matters relating to the administration of the common school system, but such final action can come only from the State Board of Education.
Now, with the above legal background relating to the duties of the State Superintendent of Schools and the State Board of Education, let us examine Section 32-410, the provision of law about which the present controversy hinges. This Section provides as follows:
"The Board shall have general supervision of the State Department of Education and shall employ and dismiss, upon the recommendation of the State Superintendent of Schools, such clerical employees, supervisors, administrators, and other employees as may be necessary for the e.fficient operation of the common school system."
At the outset, I wish to point out that I have reviewed an opinion written
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by Honorable M. J. Yeomans, my predecessor in office, under date of October 21, 1937, in which he held that the above provision of law prohibited the State Board of Education from taking action relating to the dismissal of employees of a common school system without the recommendation of the State School Superintendent. Judge Yeomans, after quoting the above statute, bases his opinion on the following statement:
"This, to all intents and purposes, is a civil service provision and was intended to promote the efficiency of the State Department of Education."
I am unable to follow the reasoning that the above provision of law is a civil 'service statute. The State has made adequate provision for civil service by the application of the Merit System laws to all departments of State which desire to be covered thereby. !Section 32-410, in my opinion, cannot be construed as a civil service law, but rather, such provision simply relates to the control of employees of the common school system in the absence of that department of the State government coming under the provisions of the State Merit System laws. There could be just as much civil service for employees under the control of the constitutional State Board of Education as would be possible if these employees were under the exclusive and direc~ control of the State Superintendent of Schools. In the latter event, they would be subject to the jurisdiction of th State School Superintendent in relation to their employment, while under the former instance, such final authority would be vested in the State Board of Education. One procedure, it seems to me, lends itself to as much employee security as the other.
However, it is not th<>' prerogative of the Attorney General or the courts to question the wisdom of legislation, but it is rather our duty to carry out the purpose and intent of the General Assembly, insofar as we can under the purview of the Constitution. In this connection, see Puckett vs. Young, 112 Ga. pp. 578, 581.
I am of the opinion that Section 32-410 places general supervision over all employees of the common school system in the State Depar:ment of Education, and that the State Superintendent of Schools has the authority to make recommendations to said Board, giving them the benefit of his views in reference to employment problems, but such recommendation is not final or conclusive upon the State Board of Education. This provision of law contemplates full and complete cooperation between the State Superintendent of Schools and the Si ate Board of Education, and is premised on the proposition that the State Board will give adequate consideration to the recommendations and suggestions of the State Superintendent. This is necessarily true since the State Superintendent is the executive secretary of the State Board, and as such is the administrative officer for the State Department of Education. His experience in reference to administrative questions would certainly lend support and weight to any recommendation or suggestion which he might propose to the State Board of Education in the discharge of its duties and responsibilities under the law. However, such recommendations address themselves to the sound discretion of the constitutional State Board of Education, and this Board may accept, reject or alter such recommendations as they may deem advisable under the circ*mstances. If Section 32-410 were construed otherwise, it would mean that the State Superintendent would have complete and final authority over the discharge of employees. Under this reasoning, if he !'eftF('d 'o r('C('mmend such action, then the State Board would be powerless to interfere. I do
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not believe this is the law. The very meaning of the word ''recommendation" is to suggest or request certain action, but the same is not mandatory or conclusive upon the body to which such recommendation is made.
I no:e that Judge Yeomans in his op;nion under date of October 21, 1937, did not cite any authority of law on which his conclusion was based. I realize that the Legislature could have made such recommendation of the State Superintendent of Schools mandatory upon the Board. If the word "only" had been inserted before the phrase, ''upon the recommendation of the State Superintendent of Schools", then it would be clear that the Board was restricted in its action to those instances where the State School S'Uperintendent wanted them to act. It would have been an easy matter for the Legislature to have made such legislation mandatory if this had been its purpose and intent. In the case of People vs. San Bernardina High School District, 216 Pac. pp. 959, 960, the Supreme Court of California held that where a s:atute "providing that on recommendation of the county superintendent of schools and the supervisor of the district to be annexed the board of supervisors shall annex such school district to the high school district, is not invalid as placing in the superintendent and supervisor the power of annexation; the significance of 'recommendation' being a mere suggestion as to desirability of a course of action to be pursued by the board, and 'shall' of the act being a term of direction only, it being within the discretion of the board to act."
In keeping with the above provisions of law, I am of the op:nion that the State School Superintendent has the authority to make recommendations under the provisions of Section 32-410, and that such recommendations are entitled to great weight and consideration by the State Board of Education, but that in the final analysis such final action depends upon the sound discretion of the said Board. The action of the State Board of Education is final and conclusive, while the recommendation of the 1State School 'Superintendent within the meaning of Section 32-410 is subject to review and final action by the State Board of Education.
EDUCATION-State Board-Appeals 1. Local controversies regarding construction or administration of school laws shall first be heard by the County Board and appeal may be taken to the State Board of Education, through the County Superintendent. 2. The State Board may, in its discretion, refer the case back to the County Board upon written statement by the county superintendent that error has been made in the record.
June 21, 1949 Hon. George P. Whitman, Jr., Chairman State Board of Education
I am pleased to acknowledge your letter of June 13, together wLh Resolution passed by the Dodge County Board of Education, in which that body sought to repeal a resolution previously adopted by it on April 13, 1949, naming cer~ain persons as trustees of the Rhine 1School Distr'ct. I understand that an appeal has also .been made to the State Board of Education, the same having been made prior to the adoption of the last resolution by the Dodge County Board of Education, and tha: the matter has now been reset for a hearing before
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the Dodge County Board of Education at its June regular session of 1949. Your letter does not set forth any specific legal questions which you have
in mind, so I will therefore deal generally w:th the ma:ter of an appeal from the county board of education to the State Board. The law governing appeals is set forth in Section 32-910 of the Supplement to the Code, and reads as follows:
"The county board of education shall constitute a tribunal for hearing and determining any matter of local controversy in reference to the construction or administration of the school law, with power to summQn witnesses and take testimony if necessary; and when they have made a decision, said decision shall be binding upon the parties. Either of the parties shall have the right of appeal to the State Board of Education, and said appeal shall be made through the county superintendent of schools in writing and shall distinctly set forth the question in dispute, the decision of the county board and testimony as agreed upon by the parties to the controversy, or if they fail to agree, upon the testimony as reported by the county superintendent of schools: Provided, that this section shall not apply to any public school system established prior to the adoption of the Constitution of 1877.''
Section 32-414 of the Amended Code provides as follows: "The State Board of Education shall have appellate jurisdiction in all school matters which may be appealed from any county or city board of education, and its decisions in all such matters shall be final and conclusive. Appeals to the Board must be made in writing through the county superintendents of schools, or the secretary of the Official Board of Independent Systems, and must distinctly set forth the question of law, as well as the facts in the case. The Board shall provide by regulation for no:ice to the opposite party and for hearing on the appeaL" The above provisions of law set forth the procedure to be followed in appealing a case from the county board of education to the State Board. While the law itself is silent as to the authority of the State Board to ref& a case back to the county board, it would seem that such a procedure could be invoked if, in the discretion of the State Board, the same should be advisable in a given case. Should it appear from the appeal filed by the superintendent in this case that an error had been made by the county board of education in reference to the minutes of its meeting, it would appear that the State Board of Education could take these facts into consideration in determining whethE:r or not such a case should be sent back for further action to the county board. The record before me does not reveal whether the Board has notified the opposite party for the hearing on appeal, or even whether or not such a date has been fixed as to this time by the Board. The law does require that "the Board shall provide by regulation for notice to the opposite party and for hearing on the appeal."
It seems clear from the statutes previously referred to that the State Board o:f Education only exercises appellate jurisdiction in matters which are properly appealed in writing from the county superintendent of schools. The State Board of Education has some latitude in referring a case back to the county board of education, provided the county superintendent of schools shall in writing state to the !State Board that an eiTor has been made in the record which is presently pending before the appellate body. Once the State Board of Educa:ion has rendered its decision, the same shall become final and conclusive. Until such decision is rendered however, the State Board of Education
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may, under the proper circ*mstances outlined herein, grant the right to the county board of education to perfect its record in order that the appeal may fully and completely speak the truth.
EDUCATION-State Board Code Section 32-411.1 regarding those grades to be classified as elementary and those to be classified as high school grades has application only to the duties, powers and scope of operation of the State Board of Education.
Honorable M. D. Collins State Superintendent of 1Schools
December 14, 1949
I have a copy of your letter of December 1, 1949, to the Honorable William C. Fleming, in Augusta, Georgia, in which you told Mx. Fleming that you were submitting to me his question regarding Code Section 32-411.1. The said Code Section is as follows:
"For the purpose of operation of the common schools of this S:ate, and the participation therein by the State, the elementary grades of the common schools shall embrace grades one through seven, inclusive, and no other; and the high school grades shall embrace 8 through 12, inclusive, and no other."
Mr. Fleming asks if there are any counties in the State of Georgia to which the above Code Section does not apply in operation of public schools and especially if this Code Section applies to the publ:c schools of Richmond County, Georgia.
Examination seems to disclose that the Code Section in question was enacted in 1947 (Georgia Laws 1947, pages 668-669), as an amendment to an Act of the Legislature of the year 1937 (Georgia Laws 1937, pages 864-866). We find that the Act of 1937 was an Act establishing a State Board of Education and defining the duties of the Board. This 1937 law as amended has been codified as Chapter 32-4, entitled "State Board of Education." Viewing Code Section 32-411.1 in this context, therefore, we find that in reality, it applies only to the State Board of Education and says, in effect, that for the purpose of the operation of the common schools of this State and the participation therein by the IState, the elementary grades of the common schools shall embrace grades 1 through 7 and the high school grades shall embrace 8 through 12 insofar as the State Board of Education is concerned. That is, it seems that Code Section 32-411.1, with which M'r. Fleming's inquiry is concerned, pertains to the duties and powers or scope of operation of the State Board of Educa:ion.
I cannot determine with certainty the purpose of Mr. F1eming's question, and for that reason what I have to say hereafter may not be of much benefit to him.
Considering certain other pertinent Code Sections of Title 32, in view of the 1949 Act (Georgia Laws 1949, page 1435) of the Legislature amending the Richmond County School System, there seems to exist no actual conflict between the general educational laws of our 'State and the local Richmond County Act of 1949 in regard to the number of grades in our elementary and high schools.
Let me call your attention to certain pertinent provisions of Chapter 32-6
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of the Code which contains the equalizing of educational opportunities Act as amended:
Code Section 32-601 provides that "It is hereby declared to be the public policy of the Sate of Georgia that educational opportunities for all of the children of school age in this State shall be equalized throughout the State by the State Board of Education, so far as P'ossible."
Code Section 32-604 provides that "For the purposes of this Chapter, the several counties of the State, and the various independent school systems established by Jaw, shall be the local units of administration."
The last paragraph of Section 32-609 provides that "For the purposes of this section, grades one through seven, inclusive, and no others shall be considered elementary grades, and grades 8 through 12, and no others, inclusive, shall be considered high school grades."
'Section 32-611 provides that "Nothing in this Chapter shall opemte to prevent any local school unit from providing for local fund educational advantages in addition to those herein prescribed or that may be prescribed by the State Board of Education or from making rules for the government of such local systems not in conflict with those prescribed by the State Board."
Code Section 32-615 provides that local boards of education may operate schools for a longer period than seven months during any school year and may' supplement the salaries of or employ additional teachers provided that the teachers in any such schools shall not receive less than the minimum salary prescribed by the State Board of Education, and provided fur:her, that local units may operate kindergarten or grades above the 12th solely from local funds.
It is also worth noting that Code Section 32-621 provides that Code Section 32-948, relating to creating an equalization fund for the public schools, and providing for its distribution, shall remain in full force and effect.
You will note that the above sections which I have referred to all apply to the school equalizing opportunities Act of 1937 as amended, and you will recall perhaps, that the Supreme Court in the case of State Board of Education v. Richmond County Board of Educ,ation, 190 Ga., 588, ruled that an amendment of 1939 to the school equalizing opportunities Act of 1937 brought Richmond County and other independent systems under the equalizing opportunities Act or under Chapters 32-6 of the Code, pertinent provisions of which I have called to your attention above.
Since the courts have ruled that the equalizing of educational opportunities Act, a general Act, applies to the Richmond County system, it is unlikely that a local bill would attempt to contradict the terms of the equalization Act. Fortunately, as I see it, here has been no attempt to pass such a local Act. It is true that in 1949 (Georgia Laws 1949, page 1435), there was passed a local Act which was an amendment to the old Richmond County local Act of many years standing, and Section 4 of the 1949 Richmond County Act, which is the only section which treats particularly with the number of years in elementary or high school, is as follows:
"The Board of Education, subject to the provisions of this Act, shall manage and con~rol a public school system for Rkhmond County which shall include elementary grades and high school. The Board may in its discretion include in the system, kindergarten, junior high school, and junior college, and
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may increase the number of elementary, junior h'gh and senior high grades to a total of sixteen."
In other words, by the 1949 Act, Richmond Coun:y may in its discretion include in its system kindergarten, junior high school and junior college and may increase the number of its grades to a total of sixteen. There is nothing in Chapter 32-6, the equalizing of educa:ional opportunities Act, which would prevent Richmond County from doing the above so long as Richmond County met the minimum requirements of the State. It is true, however, that any additional advantages or grades above the minimum which Richmond County wished to provide for its children would have to come from local funds.
EDUCATION-State and County Boards (Unofficial) Honorable H. C. Ray
Loyalty oath must be taken by members of Boards of Educat'on.
April 5, 194g Hon. H. G. Ray Chairman, School Committee Savannah Council J.O.JJ.A.M.
I am pleased to acknowledge your letter of April 2 in which you ask whether or not members of the Board of Education are required to take the loyalty oath approved February 23, 1949.
I bel'eve Section I of this Act supplies the answer to your ques:ion. The same reads as follows:
"Be it enacted by the General Assembly of the State of Georgia and it is hereby enacted by authority of the same that from and after the passage of this Act all persons who are employed by and are on the pay roll of and the recipient of wages per diem and/or salary of the State of Georgia, or its departments and agencies, all counties and cities, school districts and local educational systems throughout the entire State, are hereby required to take an oath that they will support the Constitution of the United States and the Constitution of the State of Georgia."
EDUCATION-State Superintendent of Schools The State Superintendent has no authority to make nominations to the State Board of Education for Superintendent of Georgia Academy of the Blind, control of that institution being in the State Board of Education.
May 16, 1949 Hon. M. D. Collins
I am pleased to acknowledge your letter of May lOth, in wh'ch you state the following:
"At a meeting of the State Board of Education on April 20, 1949, the Chairman of the State Board of Education read an opinion (he did not say whose opinion he was reading) that the State Superintendent of Schools did not have the legal authority to nominate to the :State Board of Education the Superintendent of the Georgia Academy for the Blind, but that this institution fell completely and wholly within the jurisdiction of the State Board of Education. . . . .
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"Therefore, if he was reading an opm10n from the Attorney General, I would appreciate your furnishing me with a copy of ~aid opin'on. If not, I would appreciate your advising me as to whether or not the State Superintendent of Schools has any official responsibility for the selection of the personnel and for the operation of the Georgia Academy for the BEnd.''
In answer to your inquiry regarding an opinion rendered by me on this question, I wish to state that I have not rendered an opinion either official or personal to anyone on this subject. I am glad however, at this time to refer you to the following provisions of law, and give you my official opinion based on these statutes.
The duties of the State Superintendent of :Schools are set forth in Code Section 32-505 as follows:
"The State Superin'.:endent of Schools shall carry out and enforce all the rules and regulat:ons of the State Board of Education and the laws governing the schools receiving State aid; he shall from time to time make such recommendations to the State Board as may affect the welfare and efficiency of the public schools; he shall have authority to suspend a county superintendent of schools for incompetency, wilful neglect of duty, misconduct, immorality or the commission of crime involving moral turpitude: Providing, of course, that all of his acts in this matter shall be subject to the approval of the State Board of Education, and the party so suspended may appeal his case to the State Board, whose decision shall be final."
There are other provisions of law dealing with the powers and duties of the State Superintendent of Schools which will not be referred to in this opinion since they have no bearing on the question at issue. It is sufficient for the purposes of the present inquiry to note that the primary duty of the State Superintendent of Schools is to "carry out and enforce all the rules and regulations of the State Board of Education and the laws governing the schools receiving State aid." We do not have a statute empowering the State Superintendent of Schools to nominate a person to the State Board of Education for the position of SuperintE;ndent of the Georgia Academy for the Blind. The control of the Academy for the Blind is vested in the State Board of Education. Section 32-2801 provides as follows:
"Effective July 1, 1943, the authority, powers, duties, supervision, control and management of the Georgia Academy for the Blind, as laid down in Chapter 35-7, and the Georgia School for the Deaf, as laid down in Chapter 35-8, are hereby taken from the State Board of Social Security and transferred to the State Board of Education." (Emphasis supplied).
From the above provisions of law, I am of the opinion that the State Board of Education has the legal control of the Academy for the Blind, and that this Board has the authority to select a superintendent for such institution within the purview of these laws.
In concluding, I also call your attention to Section 32-410 of the Amended Code, which provides:
"The Board shall have general supervision of the Sta'.:e Department of Education and shall employ and dismiss, upon the recommendation of the State Superintendent of Schools, such clerical employees, supervisors, administrators, and other employees as may be necessary for the efficient operation of the common school system."
The above provision of law does not apply to the Academy for the Blind,
527
since the control of this institution is under the authority of the State Board of Education as shown by Section 32-2801, supra. The Act placing the control of the Academy for the Blind under the direct control of the State Board of Education was passed in 1943, while the Act relating to the recommendation of the State :Superintendent of Schools for employees of the common school system was passed in 19 37.
Even assuming that the State Superintendent of Schools had the authority to recommend to the State Board of Education a Superintendent for the Academy for the Blind, this would only be as the Act states a "recommendation of the State !Superintendent of Schools," and would not be conclusive on :the general supervision of the Sta'e Board over the control of such employees. A recommendat'on under the provisions of Section 32-410 is not to be construed as mandatory on the part of the State Board of Education, but simply as a sugges":ion or recommendation to be followed or disregarded in the discretion of the State Board of Education.
EDUCATION-Teacher compen$ation (Un.oHicial) No distinction is made between salaries of male and female teachers of like professional training and length of service.
November 8, 1949 Mr. F. C. Underwood, Jr. Business Manager Board of Public Education
I am pleased to acknowledge your letter of November 7, 1949 requesting that I advise you of any law which states that female teachers with the same professional training and length of service be paid the same amount as male teachers.
Under the law I can only give opinions to the Governor and to the heads of the Departments of the State Government on matters in which the interest of the State is involved. Therefore, anything that I may say in reply to your letter is to be considered only as an expression of my personal opinion and not binding in any manner whatsoever.
I am not familiar with any law which makes any distinction between male and female teachers with the same professional training and length of service.
I am advised by Dr. Allman of the !State Department of Education that he knows of no rule or regulation of the State Department of Education which makes any distinction between female and male teachers with the same professional tra'ning and length of service.
528
.EDUCATION-Teacher Retirement Any payments by the Department of Roads and Revenues to non-clerical personnel of the Agricultural Extension Service constitute the Department an ''employer" and obligate it to deduct teachers' contributions and also to .make employer's proportionate contribution to fund.
March 11, 1949 Mr. Ted Copeland, Clerk and Member Commissioners of Roads and Revenues Lumpkin County
In your letter of March 1, you asked for general informat:on on the Teachers Retirement System which would affect the office of the Commissioners of Roads and Revenues and their relation to the County Agent and the Home Demonstration Agent, and you stated fur~her that you were especially interested in contribution to this fund by the County and whether or not such contribution is required by law or is only a courtesy.
Georgia Code Annotated Supplement, Section 32-2901, subsection (4) defines the term "employer" under the Act as the State of Georgia, the county or independent board of education, the State Board of Education, the Board ()f Regents of the University System of Georgia, or any other agency of and within the State by which a teacher is paid.
Subsection ( 5) of said Section, in part, defines the term "teacher" as any person employed no!: less than half time in the pubr c day schools as a classroom teacher, or in the supervision of the public schools, or any employee of the State Board of Education employed in a teaching or supervisory capacity, or any teacher or supervisor employed and paid by the Board of Regents of the :University .System of Georgia and all nonclerical personnel of the Agricultural Extension Service of the University of Georgia.
Subsection (5) says further, that the Board of Trustees shall determine in .doubtful cases whether any person is a teacher, as defined in this Chapter.
Georgia Code Annotated Supplement, S(:ction 32-2921, sub-section (8), says that it shall be the duty of each county board of education, the board of education of each independent school system and of each and every employ(:r of school teachers as employer and teacher are defined by section 32-2901, to deduct and collect from each teacher's salary the amount provided in this section, and to make monthly remittance thereof to the Board of Trustees created by Chapter 32-29 of the Code. Each employer of teachers shall likewise make employers contribution as required by this section and shall make monthly remittance thereof to the Board of Trus:ees along with teachers contributions.
I find that I received an inquiry similar to yours from the County Attorney of Bibb County, Georgia, which I answered on February 19, 1946, in part, as follows: That a County may levy a tax :o provide benefits for a County Agricultural Agent under the Teachers Retirement System. See Georgia Code (1945 Constitution) Section 2-5502; Georgia Code Annotated Supplemen':, Section 92-3701 subsection (17).
I also called attent:on to Code Section 32-2901, cited above, which defines the term "employer" and then stated, and I quote:
"It would follow that if the county pays any part of the county agent's salary, even though assigned to the county by the Agricultural Extension .Service of the University, the county agent would be the employee of the
529
University 'System and of the coun':y, and under the terms of the Act the University System and the County would both be required to contribute to reserve fund from which teacher retirement benefits are paid. In the definition of 'teacher' all nonclerical personnel of the Agricultural Extension Service of the University of Georgia are included and defined as teachers. This nonclerical personnel is composed of the county agent, the home demonstraJon agent, and the personnel which promotes the 4-H boys and girls activities. They are recognized as teachers by the University System of Georgia and are included in the teacher retirement system by the Act of the General Assembly."
It would seem, therefore that the law requires any agency within the State by which a teacher is paid to make its prorata contribution to the Teachers Retirement fund, and it seems further that the County Agent and the Home Demonstration Agent have been included in the definition of the word "teacher' as it appears in the Act.
I trust that you will f"nd the foregoing sufficient for your purposes. but should you have any further questions, please communicate with me.
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone other than the Governor and the heads of the various &tate departments upon matters pe~taining to the interests of the State. However, i~ is a pleasure to cite to you the above provisons of law, and I trust thatthese will be of benefit to you.
EDUCATION-Teacher Retirement A teacher who has bona fide retired and who is reemployed at a salary less than final compensation under former employment may nevertheless draw the entire retirement pay.
April 1, 1949 Honorable J. L. Yaden Execu. ive Secretary-Treasurer Teachers' Retirement System of Georg:a
I have your letter of March 22, 1949, in which you ask: "Can a teacher ret're from the State Teachers' Retirement System (Service Retirement), and later go back in o the teaching profession and still draw retirement while teaching?" I understand that this question has arisen in particular regard to members of the Retirement Sysem who upon reaching the age of s:xty go through the formality of retiring and obtain the 'nstitution of their retirement allowance and then are immediately re-employed by the same employer a~ a salary less: than their annual compensation at the time of their a'leged retirement. Thus they seek to receive their retiremen: allowance in addition to their new reduced salary. This, in effect, means that the employers of certa;n members under the retirement System are using the retirement funds :o pay part of the salaries of. those who are technically eligible for retirement and have nominally done so.,. but who have in fact continued in the same position. I th:nk we can all see in :his a possib'lity of the abuse of the splendid: intent of the Teachers' Retirement S<ystem.
Under the Teachers' Retirement System law, any member in service may rct;re on a service retirement allowance upon written applica:ion to, the; Board.
530
of Trustees, setting forth at what time he desires to be retired, provided the member at the t'me so specified for retirement has attained age sixty, and upon such service retirement a member shall receive a service retirement allowanc consisting of an annuity and pension. See Georgia Code Annotated Supplement, Section 32-2905, Paragraphs 1 and 2.
It seems to have been held in cases involving retirement plans similar to the Teachers' Retirement System that when a member on reaching the age of sixty exe1 cses his option to retire under the benefits of this Act and any particular payment under the pension plan has become due, he acquires vested contractual rights in and to his retirement allowance which cannot be impaired. See: Trotzier v. McElroy et al., 182 Ga. 719.
The ruling in the above case is restricted to a holding that "the pension is due only where the contingency provided for has occuned before a change in the char,er, ordinance, or statute under authority of which the pension was to be paid."
Any rights concerning a vested benefit are determined by the law~ which were in effect at the time of the vesting. A vested benefit may not lega'ly be diminished or o~herw:se affected by subsequent legislation or regulation unless statutory reservations are included in the law at the time benefit vests providing for diminishing or otherwise altering the benefit. See: Trotzier v. McElroy et al., supra; Hollis v. Jones et al. 184 Ga. 273.
As you know, the Teachers' Retirement System Act by Sect:on 32-2911, provides that the Board of Trustees, subject to the I:mitations of the law, may from time to time establish rules and regulations for the administraion of funds created by the law and for the transaction of its other business. In my opinion, this provision would in nowise allow the Board of Trustees by any rules or regulations to diminish or alter vested benefits. The Ac: itslf, insofar as I can find, has only one provision or reservation by which a vested retirement allowance shall cease. That provision is Paragraph 6 of Section 32-2905 of the Georgia Code Annotated Supplement, which is as follows:
"Restoration of benefiiciaries to membership. If a beneficiary is restored to service and receives annual compensation of not less than his average final compensation, his ret:rement allowance shall cease, and he shall again become a member of the retirement system and contribute thereafter. Any:hing in this Chapter to the contrary notwiths:anding, any prior service certificate .on the basis of which his creditable service was computed at the time of his ret'rement shall be res:ored to full force and effect, and upon his subsequent retirement he shall be credited with all of his service as a member, but should he be restored to service on or after the attainment of age 50 his pension upon subsequent retirement shall no: exceed the sum of the pension which he was receiving immediately prior to his last restoration to membership and the pension payable in respect to his service since his last restoration to membership."
You will note that the first sentence of the above provision states that if a beneficiary is restored to service and receives annual compensation of not less than his average final compensa:ion, his retirement allowance shall cease, and he shall again become a member of the retirement system and contribute thereafter. That is the only provision in this law which I can find which provides for the cessation of a vested retirement allowance and, by the provision, this CE:ssation must be and can only be when the beneficiary is restored to service
531
at a salary at least the equal of his average final compensation at the time of his retirement.
We are forced to advise, therefore, that under the terms of this Act and the rules of the case hereinbefore cited, that if a beneficiary is restored to service and receives annual compensation of less than his average f'nal compensation, even though the difference is just a matter of a dollar or two, that the restored member is entitled to continue to receive his retirement allowance in addition to such salary as he may be paid on his restoration.
I shall not attempt here to answer the ques':ion whether or not a beneficiltry, by agreeing to receive an allowance less than he is entitled to under the Act, relinquishes any rights which he may have under ',he Act.
I am aware that the position which I have taken in this matter may lead to inequitable resul:s in some instances. I feel 't my duty, therefore, to point out to you that substantially all of these possible inequities may be prevented in the future, as to benefi: payments not yet vested, by an amendment to the Act which would in some manner provide that a beneficiary on being restored to service shall cease to receive his retrement allowance regardless of the salary at which he is restored.
There remains one me~hod by which I feel it may be possible to prevent an abuse of the Teachers' R,etirement System, which abuse results by the Act apparently allowing a member who has nominally retired, to secure the benefits of his retirement allowance and ye: actually continue in or immed.ately be re-employed for substantially the same work by the same employer, and thus use the retirement fund to supplement or to pay a part of his salary whieh should be paid wholly by the educational funds collected and appropriated for that purpose.
I bel'ieve the courts will recognize that the fundamental purpose of the Teachers' Retirement law is to pay an allowance to those who have ac.ually entered upon a bona fide retirement, and that a nominal, techn'cal retirement made only for the purpose of having the Teachers' Retirement funds supplement or pay a part of a teacher's salary, who has in fact continued in the same position, would not be a retirement as contemplated and intended by the Ac:. For that reason, I believe that the courts, in the exercise of their equitable jurisdiction, m"ght well consider each individual case on its merits, and upon determining that the re'.irement was not bona fide, might rule that the allowance be discontinued until actual retirement.
In passing upon such a matter, I believe that the courts would consider the constitutional provisions which set out the purposes for which the powers of taxa:ion may be used and that our Constitution provides that we may tax for both educational purposes and for the Teachers' Retirement System. It is fundamental that funds collected by taxation for one purpose and appropriated for that purpose cannot be spent for another purpose. It would follow, therefore, tha~ funds collected and appropriated for educational purposes could not be spent for retirement benefits and that funds collected and appropriated for retirement benefits could not be spent on educa.ion.
It would seem to me apparent, then, that the funds of the Teachers' Retirement System could not be used to pay salaries of teachers, and that any attempt by an employer to use the retirement funds to pay a part of, or supplement, a salary to a teacher, would be an at:empt to do indirectly that which cannot be done directly, and thus v'olate a fundamental legal rule.
532
Though I am sure every effort will be made by all members of the System to comply with the spirit as well as the letter of the Teachers' Retirement law, I feel constrained to point out that there is a penal provision regarding any person atempting to defraud the Teachers' Retirement System.
EDUCATION-Teacher Retirement A member of the System after reaching the age of 70 may cont'nue in employmen~ only until the end of the school year, and then only with the approval of his employer.
August 18, 1949 Honorable J. L. Yaden, Secretary-Treasurer Teachers' Retirement !System of Georgia
I have your letter of August 6, which you addressed to one of my Assistants, and in which you enclosed a letter from Mr. Wm. W. Mendenhall. The questions asked by you and Mlr. Mendenhall, and which questions have also been asked this office by o:her persons concerned with the Teachers' Retirement System, seem to be as follows:
Can a member of the Teachers' Retirement System continue in employment after he reaches the age of 70?
If the answer is no, what is the agency to prevent him from doing so, the employer, or the Teachers' Retirement System, or some other agency?
The first question, as you know, has been generally answered by my letter to you of April 5, 1949, which concerned retirement at the age of 70, and I quote from that letter:
"Sub-section 1 (b) of Section 5 of the Teachers' Retirement Law, codified under Code Section 32-2905 of the 1933 Annotated Code, pocket supplement, relates to optional and compulsory retirement, and your questions direct themselves to the compulsory retirement par: thereof.
"It is my opinion that this provision of the Teachers' Retirement Law means that any member in service who on the commencement date (effective date for the commencement of contributions) has reached the age of seventy, or who after the commencement date reaches the age of seventy shall be retired forthwith on a service retirement allowance, with the following two exceptions to this general requirement :
"1. Wben such person has the approval of his employer he may remain in serv:ce until the end of the school year in which he receives such approval, and
"2. When such person has the recommendation of his employer and the approval of the Board of Trustees of the Teachers' Retirement System, he may continue in service for a period of one year following each such recommendation and approval, but such extension shall no: be beyond June 30, 1949.
"The provisions of the second proviso would not be effective after June 30, 1949, since it would become inoperative by operation of law, and the provis'ons of the first proviso after June 30, 1949 would be the only exception to the general requirements of mandatory retirements under sub-section 1 (b) of section 5 of the Teachers' Retirement Law, codified under Section 32-2905 of the 1933 Annotated Code, pocket supplement.
"It is my further opinion that it was the intention of the General Assembly to provide for the compulsory retirement of those persons reaching the age of
533
seven:y with the above enumerated exceptions for certain continuances and, therefore, a person who has retired after age seventy would not be reemployed after June 30, 1949."
You will note from the foregoing that I have given my definite opinion that after June 30, 1949, it is mandatory that any teacher or member of the Retirement System must retire is he has reached 70 years of age.
Your next question, then, is what agency is charged with the responsibility of enforcing this retirement and preventing the re-employment of such retired member.
In regard to this ques~ion, I am advised that there has been some misunderstanding, and that interested parties had been proceeding under the assumption that I had ruled that it was the sole responsibility of the employing agency (county and/or city boards of education) to comply with the provision of the law concerning retirement a: the age of 70. While I am of the opinion that it is a responsibility of the employing agencies to comply with this law, I have not been asked for an official opinion nor have I given one to the effect that it was the sole or chief responsibility of the employing agency alone to enforce the provisions of this law.
You will note that the Retirement System is generally placed under the management of the Board of Trustees for the purpose of providing retirement allowances and other benefits under the provisions of the Teachers' Retirement Act of the State of Georgia (Code Sec'ion 32-2902).
Next, that any person who becomes a teacher, as teacher is defined in the Act, shall become a member of the Retirement System as a condition of his employment, with certain exceptions (See Code Section 32-2903). The Act further provides that a member in service may retire upon written application to the Board of Trustees after reaching the age of 60 and that any member who has attained the age of 70 at the commencement date, shall be retired forthwith after June 30, 1949, except that with the approval of his employer he may remain in service until the end of the school year (Code Section 32-2905).
Viewing these Sec:ions as a whole, it is my opinion that it is the duty of the Board of Trustees of the Teachers' Retirement System to see to it that any member of the System who has reached the age of 70 is retired forthwith. In other words, I feel that the primary duty or responsibility for enforcing this provision of the law 1ests upon the Board of Trustees of the Teachers' Re:irement System.
In closing, I might add that it is my opinion that any employer of a member of the Retirement System who continues to employ a member after his mandatory r~tirement at the age of 70, and to pay him with State educational funds, is doing so in violation of the law as it now s:ands, and runs the risk of difficuit:es with the State Auditor and otherwise.
534
EDUCATION-Teacher Retirem1ent As a matter of public policy the accumulated contributions of a member murdered by her husband are payable to her estate, even though her husband was designated as beneficiary.
October 3, 1949
Honorable J. L. Yaden, Secretary-Treasurer
Teachers' Retirement System
Re: Accumulated Contributions of M1ra. Sara Phillipa Mayo
As you know, we have had under advisem*nt for some time the matter of
the accumulated contributions in the Teachers' Ret:rement System of Mrs. Sara
Phillips M;ayo, deceased.
You received a copy of a letter dated August 30, 1949, from one of my
Assistants to the Honorable John M,. Goddard, Attorney, Griffin, Georgia, in
which it was stated that we would prefer that this matter be settled by the
courts and that necessary proceedings be instituted .by some of the parties con-
cerned in Griffin, Georgia. Since that time, however, I have talked again to
some of the Griffin parties and was advised by them that, because of the small
amount involved, they would like very much to have this matter disposed of
without the expense and trouble of a court action. I have, therefore, re-
considered the problem and reached a conclusion which I trust will be satis-
factory to you, and which I believe will settle the matter.
As you know, Sara Phillips Mayo was a teacher and a member of the
Teachers' Retirement System who had paid contributions to the System. Under
Code Section 32-2905, she had designated, in the event of her death, that her
accumulated contributions be paid to Thomas R. Miayo. Thomas R. Mayo was
later convicted of the murder of the said Sara Phillips Mayo. Since her death,
Thomas R. M)ayo has requested that he be paid the deceased's accumulated
contributions to the Retirement System as he was designated by her to l'eceive
them. Various relatives of the deceased have requested that her accumulated
contributions be paid to them. The Administrator of the estate of Sara Phillips
Mayo has also requested that the accumulated contributions be paid to the estate
of the deceased.
Though there seems to be no indication that the Georgia courts have had this problem before them, I am of the opinion that the designated beneficiary of a deceased member of the Teachers' Retirement System would be analogous to the beneficiary of an insurance policy. Again, while there seems to be no Georgia law on the matter, there is considerable law in other jurisdictions that an assignee or beneficiary of an insurance policy intentionally and feloniously causing the death of the insured, cannot recover on the policy and, ordinarily, the policy becomes payable to the insured's estate. (See 46 C. J. S.. p. 57, Sec. 1171).
We do know that under the case of Crumihly v. Ha.ll, 202 Ga. 588, that upon the death of a wife without issue, the husband is the sole heir, and this provision of law of descent and distribution is not changed so as to forfeit his right of inheri~ance by reason of the husband's having murdered his wife.
I understand that Sara Phillips Miayo died without issue and that Thomas R. M;ayo was, purportedly, her husband at the time of her death, though I understand that relatives of the deceased hoped to prove that because of a previously undissolved marriage, that Thomas R. Ml!.yo was not the legal husband of the
535
deceased. That, fortunately, is a phase of the matter which we do not have to pass upon.
Following, then, the prevailing authority of other jurisdictions, I am of the opinion that you should pay the accumulated contributions of the said Sara Phillips Mayo to the duly appointed Administrator of her estate. A. first blush, I know it might seem inconsistent to you for me to rule that when a benef:ciary murders his wife he cannot recover her contributions and the contributions become payable to her estate and then admit that under the law of Georgia that the same husband or beneficiary who had murdered his wife may inherit from her under the laws of descent and dis'.ribution. Examination of the matter, however, will disclose that the law of descent and distribution :s a positive statute and there can be no rule of public policy which contradicts an express statute, but in regard to accumulated retirement contributions, there being no express statute as to the beneficiary's recovery, that as a matter of public policy, it is proper and sound to prevent a beneficiary murdering the insured, or the contributor, and recovering as the designated beneficiary.
Be that as it may, let me say again that it is my opinion that it would be proper for you to pay the accumulated contributions of Mrs. Sara Phillips Mayo to the duly appointed Administrator of her estate.
EDUCATION-Teacher Retirement. 1. A teacher otherwise eligible may not be a member while in the service of an employer operating a local retirement system, but upon discontinuance of the local system becomes eligible. 2. The governing boards of school systems may supplement the State retirement pay with pensions and allowances out of local funds. 3. Retroactive contributions to the State system by former local members are not authorized.
Honorable J. L. Yaden, Secretary-Treasurer
DE>cember 16, 1949
Teachers' Retirement System
In your letter o November 4, you stated that a delegation of Chatham County teachers had asked if they could join the State Teachers' Retirement
System at the present time or at a later date. You pointed out that Chatham County operates its own local retirement fund. You also stated that if my
answer to your question was in the affirmative that you would like me to ex-
plain how the; Chatham County teachers could join the State system, and also
to explain how retroactive contributions by the members and employer can be made if retroactive contributions are permissible at all.
The Teachers' Retirement System of Georgia is codified as Chapter 32-29
of the Georgia Code, and some of the pertinent provisions are as follows:
Section 32-2903, paragraph (3) provides that a teacher otherwise eligible
shall be classified as a member only while he is in the service of an employer
not operating a local retirement system.
Section 32-2922, paragraph (1) provides, in part, that teachers in the
service of an employer operating a local retirement fund shall not be members
of the Retirement System of Georgia established in Chapter 32-29, and such
teachers shall make no contributions to the State Retirement System, and shall
536
bt eligible for pension benefits under the State System only as provided in Section 32-2922. Paragraph (5) of the same section provides, in part, that "If the majority of teachers in the service of an employer operating a local retirement fund vote to discontinue the local retirement fund and the employer approves such discontinuance, the local retirement fund shall be dissolved and its operation discontinued as of a date to be set by the employer. Teachers in the employ of such employ10r shall thereupon become eligible for membership in this retirement system."
I suggest further, in viewing the question generally of members of a local retirement system becoming members of the State system, that you consider carefully all the provisions of Code Section 32-2922 in addition to the particular parts I have pointed out. You should also consider Bill No. 285, Georgia Laws 1949, page 1183, which amended Title 32 by providing that the governing boards of public school systems of the State of Georgia are thereby authorized to establish pension and retirement allowances out of local funds to suppl!Oment the allowances provided for teachers under the Teachers' Retirement System. And also, Act No. 294, Georgia Laws 1949, page 1197, which amended the 1943 Act by adding in a Section 13 thereof, so that Section 13 when amended reads as follows:
"Section 13. Limitation on membership. Except as specifically provided in this Act, no other provision of law under any other statute which provides wholly or partly at the expense of the State of Georgia for pensions or retirement benefits for teachers in the State, their widows or their dependents, shall apply to members or beneficiaries of this retirement system, their widows or their dependents, provided, however, that nothing in this Act shall prevent the governing boards of the public school systems of the State and the Board of Regents of the University System of Georgia from making provision for supplementing the retirement and pension allowances of the teachers and other employees of the respectiv10 boards who are covered by the terms of the Georgia teachers retirement system."
I believe that the foregoing citations show you under what conditions the Chatham County teachers may, upon dissolving their local system, join the State Teachers' Retirement System.
I seem to find nothing in the Teachers' Retirement Act dealing directly with the matter of retroactive contributions, and thus it would seem that that question is more of an actuarial problem than a legal problem. Paragraph 7 of Code Section 32-2922, which seems to be concerned generally with the dissolution of a local system, provides that an employer operating a local fund may elect to have benefits payable under the State system in respect of earnable compensation in excess of the part of earnable compensation payable from the State funds, and, if the Board of Trustees of the State System approves, an actuarial valuation shall be made by the Actuary of the State System to determine the amount of the additional contribution payable by the employer to provide such additional benefits. Upon agreement of the employer to provide such additional contribution by uniform payments over a period of not more than 20 years, such additional credit shall be allowed the members in the employ of such employer as will result in the payment of such additional benefits at retirement.
537
EDUCATION-Teacher Retirement Members of a local retirement fund established prior to State System and dissolved within six months after the establishment of the latter System are entitled to prior service credits previous to 1943 but lose membership credits from establishment of State system to dissolution of local system.
Honorable J. L. Yaden, Secretary-Treasurer Teachers' Retirement System of Georgia
December 16, 1949
In your letter of November 4, you stated the following facts: Richmond County had a local retirement Fund for teachers prior to the establishment of the State Teachers' Retirement System. Richmond County elected to come into the State Teachers' Retirement System by July 1, 1945, and immediatEJy thereafter started making contributions as provided by law. Teachers who became members of the State System and who had not been members of a local system started making contributions to the State system as of January 1, 1945. Had Richmond County come into the State System as other School Systems which did not operate a local retirement system, and had Richmond County so entered the State System effective January 1, 1945, then Richmond County teachers would have made certain contributions of 5 o/o of their salaries not
exceeding $3,000 per annum for the months of January to July, 1945. Based on the foregoing facts, your question is: Is there anything the Richmond County teachers can do to reclaim the six
months in question for which they do not havE> membership credit?
Paragraph 6 of Code Section 32-2922 provides:
"If any local retirment fund shall be dissolved as herein provided within six months after the commencement date, teachers in the service of such employer shall be entitled to become members of this system as of the date of
such dissolution, and shall be entitled to prior service credits as herein provided for other members, for service previous to July 1, 1943, and shall be entitled
to creditable service after the date of such dissolution."
Thus it would seem that as far as the State is concerned, the teachers in question became members of the State system as of the date of dissolution of their local system, and though Richmond County teachers preserved their prior
service, or service previous to July 1, 1943, by dissolving their local fund within six months after the commencement date of thE: State system, it seems that they
lost, as far as the State is concerned, their membership credits from the commencement date of the State system until the date of the dissolution of their
local system.
It does seem, however, under paragraph 7 of said Code Section 32-2922, that on a sound actuarial basis, a method may be provided whereby in effect an employer of a local fund may elect to have benefits payable under the State system in respect of earnable compensation in excess of the part of the earn-
able compensation payable from the State funds, and that thus the E:mployer may provide additional contributions which will result in the payment of additional benefits to a member at retirement. This, however, seems to me to be
an actuarial problem to be worked out with the approval of your Board, your
Actuary, and the local employer.
538
EDUCATION-Transportation of Pupils (Unofficial) School buses owned by the governmental instrumentality are exempt from taxation; those owned by one contracting with the Board for transportation of children are subject to ad valorem taxation.
May 4, 1949 Honorable C. A. Andrews Tax Commissioner, Stephens County
This will acknowledge receipt of your letter of recent date in which you ask whether or not buses used by the County Board of Education as school buses are taxable.
The only basis on which buses used by the County Board of Education would be exempt from ad valorem taxation under the Constitution would be as "public property." Of course, if the buses are owned by the instrumentality of Government and operated by it, they would be "public property" so as to be exempt from taxation. However, if the buses are owned by a person who has contracted with the County Board of Education for the transportation of children to and from school, they would be subject to ad valorem taxes. Whether or not the buses referred to are "public property" so as to come within the exemption is a matter of fact to be determined by the proper taxing authorities.
EDUCATION-University System of Georgia 1. Property not of character authorized for investment by fiduciaries may not be retained by trustees when received under a trust unless authority therefor is granted by the trust instrument or by the Superior Court. 2. Stock so received may be sold only upon order of the court, and unless otherwise directed, at public sale.
January 27, 1949 Regents of the University System of Georgia
The Board of Regents has requested an opinion from the Attorney General covering the following three points:
1. May the Board of Regents hold the 4699 shares of stock of the Bibb Manufacturing Company received under the E. T. Comer Will without incurrin~ liability and without the necessity of a further court order?
2. May the Board of Regents hold this stock without incurring liability if a proper court order is required and is secured?
3. Is it necessary for the Board to sell this stock and if so, must the stock be sold at public auction, sold by the taking of bids, sold to an individual without bids, divided in blocks of various denominations of one thousand or five hundred and sold in this manner, or must the entire block be sold as a unit?
An examination of the will and the records in this matter discloses the following facts:
By his last will Mr. Edward T. Gomer left to the University of Georgia a substantial bequest. Under the terms of Item Fifth of the Will the University was directed to hold the bequest in trust and use the income as a loan fund for deserving students. The will is silent as to the powers or duties of the trustee of the student loan fund insofar as investments are concerned. The executors of the estate have made a partial distribution under the will and the Board of
539
Regents, as trustee, has received 4699 shares of stock of the Bibb Manufacturing Company.
The first and second questions asked by the Board of Regents can be answered together.
Under the Law of Georgia a trustee has no greater authority to retain an unauthorized investment than he has to make an unauthorized investment. In the absence of clear and express authority in a trustee to make or retain unauthorizE:d investments in the trust estate, the trustee must within a reasonable time convert the assets of the trust estate into securities authorized for investment by fiduciaries or the trustee will be subject to liability should the unauthorized investments decline in value. The authority to retain or to make investment other than those authorized by law may come from the trust instrument or from an order of the Superior Court. In either event, the trustee will be free from liability should subsequent events establish that the investment was unwise.
Clearly the will of Mr. Comer contains no authorization to the Board of Regents, as trustee, either to hold or invest the corpus of this trust in Bibb Manufacturing Company stock. However, it is my opinion that under the GE:orgia law the Board would incur no liability in holding this stock provided a proper order is obtained from the Superior Court having jurisdiction of the matter authorizing the stock to be held.
In the case of Rogers v. Dickey, 117 Ga. 819, headnote 3, the Supreme Court said:
"3. Even for the benefit of the beneficiaries a fiduciary can not hazard the trust fund in speculation, business, or any form of investment not authorized by the deed of trust, the statute, or an order of a court of competent jurisdiction."
The leading case in Georgia upon the subject of investments by trustees is that of Clark v. Clark. 167 Ga. 1, wherein the Suprem~ Court ruled:
"3. Under our law, trustees may invest trust funds in any securities issued by this State, in county and municipal bonds which have been duly validated,. and in farm loan bonds issued by Federal Land Banks or Joint Stock Land Banks. Any other investment of trust funds must be made under an order of the judge of the superior court, or else at the risk of the trustees."
The case of Marshall v. Citizens and Southern National Bank, 54 Ga. App. 123, is full authority for the proposition that the Board may hold this stock without incurring liability if a proper court order is secured. In that case the Court said:
"5. An investment by a guardian which has been authorized or approved by the superior court can not be attacked by the ward, on the ground that the investment was unwise, in a proceeding brought by the guardian for a settlement of his accounts and a final discharge."
And at page 130 the court said:
"..... As these investments were approved by the superior court, they can not be called in question in the present proceeding. This power of the superior court as to approving trust investments is unlimited as to the kind of securities which may be approved. If the judge makes a mistake of Judgment and approves an undesirable security, there is possibly no remedy for that... .''
Further authorization for this position is found in the case of Little v.
Haas, 68 Fed. Supp. 545. In that case the federal court in construing the Georgia Law said:
"An investment by a trustee which has been authorized by the Superior Court can not be attacked on the ground that the investment was unwise."
"In Georgia, a trustee must invest only in securities authorized by law, unless express pormission of the Superior Court is obtained for investment in other classes of securities."
"Such permission, if lawfully obtained, protects trustees in the purchase of a security sanctioned by the court although the securities are not within the class authorized by the statute."
In view of the foregoing, it is my opinion that the Board of Regents may bold th~:; 4699 shares of stock of the Bibb Manufacturing Company without incurring liability provided a proper court order is secured from the superior court having jurisdiction over the trust fund.
Such a court order would not relieve the Board of Regents from the re:sponsibility of exercising due care in the continued retention of this stock under Changed economic conditions. However, there would be no liability predicated upon the fact alone that the stock is not on~:; of the class authorized by law for investment by fiduciaries.
The third question relates to the problems of sale. Apparently the Regents would prefer to hold this stock if authorized to do so by order of the superior court. But wh6ther authorized to hold this stock or not, the stock being trust property, cannot be sold by the trustee without first obtaining an order of court authorizing the sale. In that order the court could specify the terms and conditions of the sale and would doubtless give such directions as would facilitate the disposal of the stock with the least difficulty and with the best chances of rE;ceiving the full market price. Should the order of the superior court fail to give direction as to the mechanics of the sale the procedure for sales by administrators of estates would be followed. This would involve the necessity of advertisem*nt and public sale before the court house door in accordance with the provisions of Code Sectiops 113-1707, 113-1724, 113-1706 and 113-1707. The statutes in regard to such sales are not very elastic and it is doubted that the best possible pricEO would be received for the stock if sold thereunder. It would, therefore, appear to be highly desirable to obtain a court order specifying the mechanics of the sale along more elastic lines, should the Board determine to sell this stock.
EDUCATION-University System of Georgia
Paym6nts to a former Chancellor after his resignation, and to the widow
of the Director of Budgets after his death, are illegally made and must be repaid to the State by the Board of Regents and its Treasurer,
October 26, 1949
Honorable B. E. Thrasher, Jr. State Auditor
I am pleased to acknowledge your l6tter of October 21, 1949, with attached copy of the audit of the Regents Office of the State Board of Regents of the University System of Georgia, requesting my opinion relating to the financial transactions cited on pages iii and iv of your report.
Article VII, Section I, Paragraph II of thE: 1945 Constitution of Georgia
provides:
"1. The General Assembly shall not by vote, resolution or order, grant any
donation or gratuity in favor of any person, corporation or association.
"2. The General Assembly shall not grant or authorize extra compensation
to any public officer, agent, or contractor after the service has been rendered
or the contract entered into."
.
In an opinion dated October 24, 1946 to the then Governor of Georgia, I
held:
"It is my definite opinion that the members of the State Board of Regents
are public officials and are subject to all limitations and restrictions of law to
the same extent as are other public officials of this State. The members of the
Board of RE:gents are constitutional officers. (See Par. 1 of Section 4 oL
Article 8 of the Constitution.)"
In your audit you state that the Board of Regents of the University System
of Georgia caused State funds in the amount of $3,000.00 to be paid. to Dr.
Raymond R. Paty after his services as Chancellor of the University System of
Georgia had been terminated by his resignation and acceptance by the Board
of Regents, and while you do not specifically state that no service was rE:ndered
by Dr. Paty to the State after his resignation or that Dr. Paty was not re-
employed by the Board of Regents in any capacity or performE:d any service
thereunder, I assume that your report infers these facts. If this assumption is
correct, it is my opinion that the authorization and disbursem*nt of said State
funds were in violation of the above cited constitutional provision, and I would
suggest that you call upon the Board of RE:gents and the Treasurer thereof for
reimbursem*nt to the State of the funds found by your audit to have been
improperly expended.
You also state in your audit that the Board of Regents of the University
System of Georgia caused State funds in the amount of $2,124.99 to be paid to
Mrs. Harry T. Healy, after the death of her husband who was Director of
Budgets for the Board of Regents of the University System of Georgia prior to,
his death, as the salary of her late husband for three months after his death.,
and while you do not specifically state that no service was rendered by Mrs.
Healy to the State after the death of her husband, or that Mrs. Healy was not.
employed by the Board of RegE:nts in any capacity or performed any service
thereunder, I assume that your report infers these facts. If this assumption is
correct, it is my opinion that the authorization and disbursem*nt of said State
funds were in violation of the above cited constitutional provision, and I would'
suggest that you call upon the Board of Regents and thE: Treasurer thereof for
reimbursem*nt to the State of the funds found by your audit to have been
improperly expended.
I have no reason to believe that thE: officials of the Board of Regents of
the University System of Georgia will not promptly comply with your request
for reimbursem*nt of the above stated funds, which expenditure no doubt was
caused by a sincere motive without consultation with counsel for the Board.
542
EDUCATION-University System of Georgia The Board of Regents, as Trustees for Radio Station WGST, may employ radio expert where such employment is essential to the protection of the corpus of the trust. December 5, 1949
Mr. John Fulton, General Manager WGST, Georgia Tech Station
I am pleased to acknowledge your letter of November 29, 1949 in which you ask my advise as follows:
"WGST is in need of a technical expert to prosecute its application for 5,000 Watts power at night on its assigned frequency of 920 kilocycles. The representative should be familiar with the technical aspects of the rules and regulations concerning allocations, interference problems, etc., so that he could interpret th~ interference other stations would cause to the proposed application and also what interference might be caused to other stations if this application was granted.
"He should be able to make sure that proposals from other stations do not violate the non-technical rules of the Federal Communications Commission, and also be able to show that WGST is financially and otherwise qualified and able to carry out the proposed construction.
"Can such a person be employed and paid by Radio Station WGST?" I assume from this statement that you are exploring the possibilities of employing a "technical expert" in the field of radio as an employee and representative of Station WGST, and that you do not have in mind the employment of legal counsel. On November 26', 1947 I gave my opinion as to how legal counsel could be employed by the Board of Regents of the University System of Georgia as trustee for Station WGST. I am enclosing a copy of this opinion in the event you are not familiar with it. Rule 1.711 entitled, "Appearances" of the Federal Communications Commission governing practice and procedure before this body, provides: "Any person appearing before the Commission or any of its repres.entatives may be heard in person and may be accompanied, rf:presented and advised by counsel." It is my opinion that WGST is entitled to present any facts that it may deem necessary and essential for the protection of its interests to the Federal Communications Commission through any of its employees or by legal counsel .or by both if deemed necessary. Section 108-426 of the 1933 Annotated Code of Georgia provides as follows: "Trustees are authorized, out of the income of the estate, to pay all debts incurred for its protection and preservation, and to appropriate a sufficiency of the balance for the support and maintenance of the beneficiaries of the trust. They may not encroach upon the corpus of the estate, except by order of the superior court." It is my opinion that if the trustees of WGST are convinced that the employment of an expert in the field of radio as described in your letter is essential and necessary in the protection of the corpus of the trust itself, they would be authorized to incur expenses for such employee, provided that such employee is not in fact acting as legal counsel.
543
EDUCATION-Visiting Teachers The authority to employ full-time, part-time or jointly employed visiting teachers is in the county or independent school system board of education.
May 31, 1949 Hon. George P. Whitman, Jr., Chairman Stat> Board of Education
I am pleased to acknowledge your letter of May 26th, together with an enclosure from Honorable James S. Peters, in which the question is propounded as to whose duty and responsibility it is under the law to provide visiting teachers.
The appointment of visiting teachers is provided for in Section 32-2109 of the Amended Code, as follows:
"The appointment of visiting teachers shall be made by the county or independ~nt school system board of education upon the recommendation of the county or independent school system superintendent; but no visiting teacher shall be so appointed unless qualified in accordance with professional requirements prescribed by the State Board of Education."
I also call your attention to Section 32-2108, which provides as follows: "To facilitate such enforcement, each county and independent school system board of education shall have authority to ::mploy at least one competent and qualified full-time visiting teacher, whose duty it shall be to act as attendance officer to enforce the compulsory school attendance laws of the State, and to discharge such other duties as are usually performed by, or delegated to, visiting teachers. Each county or indep::ndent school system board of education shall fix the compensation of such visiting teachers, payable from the school funds of the state and/or of the county or independent school system, and shall be authorized to prescribe the duties of such visiting teachers and make such rules and regulations for the performancE; thereof, not inconsistent with law and rules and regulations of the State Board of Education, as will promote the purposes of this Chapter. Under rules and regulations determined by the State Board of Education, the State Department of Education shall have authority to d::termine that where a county or independent school system does not require the services of a full-time visiting teacher, then such county or independent school system board of education may dispense with the services of a full-time visiting teacher and shall have authority in place thereof to employ either a part-time visiting teacher qualified in accordance with professional requirements prescribed by the State Board of Education, or join with a neighboring county or independent school system in the joint employment of a visiting teacher."
The above provisions of law place the authority to employ competent and qualified full-time visiting teachers in the county or independent school system board of education upon the recommendation of the county or independent school system superintendent. Such visiting teacher must qualify in accordance with the professional standards prescribed by the State Board of Education.
Under proper rules and regulations dettrmined by the State Board of Education, the State Department of Education is authorized to determine that where a county or independent school system does not require thB services of a full-time visiting teacher that such county or independent school system may dispense with the services of such a full-time teacher. The county or inde-
544
pendent school system may then employ either a part-time visiting teacher qualified in accordance with the standards prescribed by the State Board of Education, or join with a neighboring county or independent school system in the joint employmE:>nt of a visiting teacher. In cases of the employment of a part-time visiting teacher, the county or independent school system remains the appointive authority. The qualifications however, are subject to the requirements prescribed by the State Board of Education. The State Board of Education under the above provision of law is authoriztd to make rules and regulations not inconsistent with law for the promotion of the purposes of this Act. The State Board of Education can also prescribe rules and regulations to be followed by the State Department of Education in determining whether a county or independent school system rE>quires the services of a full-time visiting teacher. After that question has been determined, then the county or independent school system may dispense with the services of such full-time visiting teacher and have the authority to employ either a part-time visiting teacher qualified under the rulE>s prescribed by the State Board of Education, or join with a neighboring county or independent school system in the joint employment of a visiting teacher.
EDUCATION-Visiting Teachers Salaries may be paid wholly by the State, wholly by the county, or partly by each.
May 20, 1949
Hon. George P. Whitman, Jr., Chairman State Board of Education
I am pleased to acknowledge your letter of May 18th, in which you state the following:
"Shall appreciate your giving me a ruling on Code Section 32-2108Visiting Teachers and Attendance OfficE>rs.
"Under this Section, is it the State's responsibility to pay the Visiting Teachers and Attendance Officers, or is this the County and Independent School systems' responsibility?"
Your inquiry is answerE>d by Section 32-2108 of this Code, which provides as follows:
"Visiting teachers and attendance officers.-To facilitate such enforcement, each county and independent school system board of education shall have authority to employ at least one competent and qualifitd full-time visiting teacher, whose duty it shall be to act as attendance officer to enforce the compulsory school attendance laws of the State, and to discharge such other duties as are usually performed by, or delegated to, visiting teachers. Each county or independE>nt school system board of education shall fix the compensation of such visiting teachers, payable from the school funds of the State and/or of the county or in.dependent school system and shall be authorized to prescribe the duties of such visiting teachers and make such rules and regulations for the performance therE>of, not inconsistent with law and rules and regulations of the State Board of Education, as will promote the purposes of this Chapter. Under rules and regulations determined by the State Board of Education, the State Department of Education shall have authority to determine that where a county
545
or independ:nt school system does not require the services of a full-time visiting teacher, then such county or independent school system board of education may dispense with the services of a full-time visiting teacher and shall have authority in place thereof to employ either a part-time visiting teacher qualified in accordance with professional requirE:>ments prescribed by the State Board of Education, or join with a neighboring .county or independent school system in the joint employment of a visiting teacher."
Under the above provision of law, I am of the opinion that visiting teachers may be paid from the school funds of the State, or that they may be' paid from county or independent school funds if such are available. The above statute would liktwise permit a visiting teacher to be paid from the school funds of the State, and also to have this compen::;ation supplemented by the county or independent school system. The words "and/or" can be construed to mean either the word "and" or the word "or." It is cle{l.r from the above provision of law that the compensation of such visiting teachers can legally be paid from the school funds of the State. It is also clear that such compensation can be supplE:>mented by the county or independent school system, or that the same may be assumed totally by the county or independent school system, provided such funds are available.
In contrast to the method of payment for visiting teachers, I call your attention to the provisions of Section 32-2110 which fleals with the case where an attendance .offi-cer is employed in lieu of a visiting teacher. Under these circ*mstances, the county or independent school system must wholly pay the salary of such attendance officer. Section 32-2110 provides:
"County or independent school system boards of education may employ attendance, officers in Ueu of visiting teachers. Such attendance officers must be paid wholly from school funds of the county' or in.depende111t school syst.em' boards of education. Such attendance officers shall not be required to qualify under rules and regulations promulgated by the State Board of Education for the certification of visiting teachers." (Emphasis supplied)
ELECTIONS-Absentee Ballot (Unofficial) The absentee ballot provision is available only to on: who is required to be absent from the county, etc., in which he is registered.
March 30, 1949
Honorable C. H. Adams Tax Commissioner, Taylor County
I am pleased to acknowledge your letter of March 25 in which you ask whether or not a person who is confined to her home\ would be eligible to vote an absentee ballot in the election to be held on April 5th next.
Section 34-3301 of the Amended Code provides as follows: "Any voter, when required to be absent from the city or county, ward or district in which he is registered, may vote by registered mail: provided, that he or some member of his immediate family,-viz., husband or wife, father or mother, sister or brother, or son or daughter-shall give notice in writing of such intention to the registrars or the ordinary of his county, not less than 10 days nor more than 60 days prior to the primary or general election in which h{; may desire to participate."
546
You will note that the above provision of laW: only applies when the voter is required to be absent from the city or county, ward or district, in which he is registered. In addition, you will also note that not less than 10 days notice is required under the above statute.
Of course, you understand that under the law I am prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the operation of the State Government. I am glad, however, as a matter of information to cite you the above provision of law which I believe supplies the answer to your inquiry.
A voter who is confined to her home within the district or county whE>re the election is held does not come within the purview of the above statute.
ELECTIONS-Managers, Clerks (Unofficial) Compensation, on failure of county authorities to fix, is fix<Od by law.
April 4, 1949 Honorable Ivy M. Smith County Commissioner
This will acknowledge your letter of April 2, 1949 in which you inquire as follows:
"There has been some qu<Ostion about the amount the County can pay election holders in Bleckley County, I will appreciate you giving us your advice in same at your earliest convenience."
The Attorney General is authorized to render opinions only when requested by the Governor or by one of the officials of the Executive Department of this State on matters in which the State is involved. However, I am always delighted to be of assistance to County Officers any time that I can, therefore, anything I may say in reply to your inquiry must be regarded as merely an expression of my personal views on the subject and binding upon no one.
Section 34-1303 (13) of the 1933 Annotated Code of Georgia, relating to general elections, provides:
"The county authorities who have control of the county affairs shall fix and prescribe in e,ach voting p'recinct, before the day on which the elections are held, such compensation as they deem reasonable for managers and clerks of election, and in case said county authorities shall fail to fix and prescribe such compensation, each manager shall receive $2, and each clerk, not exceeding three at a precinct, $1 to be paid by the county treasurer on order by county authorities: Provided, this section shall not apply to municipal elections." (Emphasis supplied.)
This provision of law gives the enumerated county authorities broad discretionary powers to fix and prescribe reasonable compensation for election managers and clerks in general elections, and provides a fixed amount of compensation in the event the county authorities fail to fix and prescribe such compensation.
Since the question propounded is one which falls within the province of your county attorney, I suggest that you consult him regarding the abov(l Code Section.
547
ELECTIONS-Qualifications of Votera (Unofficial) A city charter provision that qualification as voters in eounty &lection for General Assembly is prerequisite to qualification for city election is ineffective where such qualification is rendered impossiblE~ by county's failure to qualify under new registration act.
October 18, 1949 Honorable R. T. Wright City Manager
I am in receipt of your letter of October 15, 1949 in which you request an opinion rE:garding the legality of the forthcoming Eastman city election.
You state that your City Charter reads that for a person to be a qualified voter in the city election he must be able to vote in the county election for members of the General Assembly. You then state that the County has not as yet complied with the new Registration Act.
The new Registration Act does not apply to municipal elections unless in some indirect manner such as the provision in your City Charter. However, this will have no effect whatsoever on your city election this year, inasmuchas the County itself has not complied with the provisions of the new Registration Act. It is my suggestion that you continue to use the old voters' list and have no fear regarding the legality of such an election.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
ELECTIONS-Qualifications of Votera (Unofficial) In a county in which the new registration Act has not been adopted, only those qualified up to February 25, 1949 are eligible to vote in coming election.
October 18, 1949
Miss Louise Dickinson
Clerk, Board of Registrars
Lowndes County
I am in receipt of your letter of October 15, 1949 in which you request
information regarding the proper voters in a special election for Tax Com-
missioner of your County.
You state that the new Registration Act has not been put into effect in
Lowndes County. I am, therefore, of the opinion that only those persons who
were qualified to vote for members of the General Assembly up until February
25, 1949 are eligible to vote in the coming election.
In order to get on the supplemental list a person must qualify under the
terms of the new Registration Act and since this Act is not effective in your
County as yet, there can be no supplemental list.
I am enclosing copy of an opinion which I rendered on March 4, 1949 to
Honorable Arthur S. Oldham. This opinion goes into more detail concerning
your question.
Since my official authority is restricted by law to legal matters relating
to the State Government, my views in this letter must be accepted as unofficial
and personal.
548
ELECTIONS-Registration (Unofficial)
Lists compensation of tax collectors.
January 20, 1949 Honorable Howard Tamplin, Member House of Representatives
Complying with your recent request in regard to who is required to pay county re:gistrars and also who determines how much their pay should be, I am pleased to give you these Code Sections which are as follows:
"34-1001. Amount of compensation; cost of voters' books and lists.I'or each name signed in the voters' books, the tax collector shall receive the sum of five cents. For each name on the list of disqualified voters each year prepared, listed and filed by them, the tax collector, ordinary, and clerk of the superior court shall each receive the sum of one: and one-half cents: Provided, that in all cases they shall receive each at least $2.00 per day. For each day the
coun.ty registrars may be actually engaged in the discharge of their duties, they sha:ll each receive the sum of $2.00. All of said. sums shall be paid out of the county treasury as other county bills are paid: Provided, how.ever, that the county commissioners of any county shall have the power to fix a different compensation for the above-na.med officers in their respective counties; and in counties having n.o county com.mis.sioners, such power to change the compensation herein provided shall belong to that officer or officers exercising the power
usually vested in county commissioners. The cost of the voters' books and of printing the lists provided for shall be paid out of the county treasury as other county bills are paid." (Emphasis supplied).
ELECTIONS-Registration (Unofficial)
Discusses application of new registration act and referendum resolution.
March 4, 1949 Honorable Arthur S. Oldham Clarke County Court House
I am in receipt of your letter of February 25, 1949 in which you request information as to whether or not the old list of voters will be used in the forthcoming election of April 5, 1949, and, if so, what will be the last day for voters 10 qualify in order to be eligible to vote in that election.
I would like to preface my remarks by saying that there is absolutely no legal precedent to follow in intupreting the registration law nor the tax referendum resolution inasmuch as they are themselves the new law. I am trying to work out the logical solution to the problems which confront us due to the complexity of the registration system.
Section 5 of H. B. No. 2 (Registration Act) reads as follows: "At any special election, held before the first list under the terms of this Act shall have been prepared and filed, the general election list of qualified voters of the year 1948, in conjunction with a supplemental list prepared in accordance With the special election provisions hereafter set forth shall be used. In the same manner the last general election list of qualified voters shall be used for any spe:cial election occurring after said list is prepared but before the preparation of a new general election list. Nothing in this section shall be
549
construed so as to prevent the Registrars from purging said old list and the supplemental list and remove therefrom those persons not entitled to vote."
The election which is to be held on April 5, 1949 is a special E>lection. Therefore, it would seem that it would come under the provisions of the new law which provides for the use of the general elE>ction list of 1948 in conjunction with a supplemental list prepared in accordance with the special election provisions set forth in H. B. No. 2.
The only section dealing with the supplemental list which is spoken of in Section 5 is Section 31 which reads as follows:
"Any person who has registered for a general election shall, if otherwise qualified to vote at any special election before the next general election, be listed and entitled to vote at such special E>lection. Five days after the call of said special election, the Registrars shall cease taking applications from persons desiring to register and qualify to vote therein, and proceed to examine into the qualifications of the applicants in the same manner as herein provided with 1eference to applicants desiring to qualify to vote in general elections. The Registrars shall then prepare a supplemental list showing the names of additional voters who are entitled to vote at such special election, and any person whose name appears on said list may vote at such special election, but the, Registrars shall purge said list before filing it of all persons who will not be qualified to vote in the same manner as provided with reference to the list for the general election. The list so prepared and arranged alphabetically and divided according to districts and wards as in the case of general election lists shall be filed in the office of the Clerk of the Superior Court within tE>n days after the call of said special election. It shall be thE> duty of the Registrars upon the call of a special election to purge the list of rE>gistered voters prepared for the last general election of any names subsequently disqualified for any reason and to furnish the managers of such special election two lists, one composed of the names of voters entitled to vote by reason of the,ir registration and qualification for the last gE>neral election, and the other made up of the names of those entitled to vote by reason of their subsequent registration as hereinbefore provided, and no one shall be entitled to vote in said special election unless his name is on one of the lists furnished by the Registrars."
You will notice that this section provides that a supplemental list shall be prepared and shall be used for special elections in addition to the general election list. Applying this to the April 5th election, this would mean that the 1948 general election list plus the supplemental list prepared for a special election would be used on that date.
Section 31 provides that five days after the call of a special election, the Registrars shall cease taking applications from persons desiring to register and qualify to vote therein. This would seem to indicate that after the Ordinary has called the spE>cial election which is to be held on April 5, 1949, that no one could apply to register and qualify after the fifth day subsequent to the call.
This would lead one to believe that each county in the State would possibly have a different date after which no one could qualify to vote in said election, inasmuch as the Ordinary of each county could pick a different day to issuE> thecall for special election.
H. R. No. 40-208B (Tax Referendum) provides in Section 3 as follows:
"At such special election there shall be submitted to the voters of the county-
550
who are qualified to vote for members of tht General Assembly as of February I, 1949, the question ...."
Taken alone, this sentence would seem to mean that only those ptople who were qualified on that specific date (February 1, 1949) to vote for members of the General Assembly would be eligible to vote in the special election on April 5th. However, it can be presumed that the Legislature intended this sentence to mean that persons who had qualified up to February 1, 1949, could vote.
This offers the interesting proposition that H. B. No. 2 and H. R. No. 40-208B are in conflict with each other as to the persons who are to be allowed to vote in the special election of April 5th.
It is my opinion that H. B. No. 2 is controlling on this point. It deals with all special and general elections, whereas, H.R. 40-208B deals only with the April 5th election and is in reality only a resolution to submit a question to the people to discover their wishes, and will be of no force and effect after April 5th.
Section 31 of H. B. No. 2 provides for a supplemental list to be used in special elections. However, Section 31 also says that this supplemental list shall be prepared in the same manner that general election lists are prepared under the provisions of H. B. No. 2.
Therefore, in order for a person to register and qualify to vote in the April 5th election, he would have to register according to the provisions of H. B. No. 2, even if only to get on the supplemental list to be used fo<r special elections. Taking this proposition further, we can see that this means that unless a county sets up the new registration machinery within a very short time, then no one will be able to get on the supplemental list. Thus, only those persons qualified under the 1948 general election list could vote in the April 5th election.
As to the persons who are qualified under the 1948 general election list, it is my opinion that all those persons who qualified under such list up to February 25th will be eligible to vote in the April 5th election. The old law concerning registration was in effect up until February 25th which was the date of the approval of H. B. No. 2 by the Governor of Georgia. Therefore, we reach the conclusion that persons who qualified to vote for members of the General Assembly up until February 25, 1949, and all those persons who are able to register and get their names on the supplemental list provided for special elections will be entitled to vote in the April 5th election.
It is my opinion that no one can register under the old law subsequent to February 25, 1949, but will have to register under the provisions of H. B. No. 2.
The point has been raised that under the Act approved February 5, 1945 (Ga. L. 1945, p. 129) notices have been mailed out to persons who did not vote within a two year period, to the effect that such persons would be disqualified unless by April 1, 1949 an application for continuance of registration was received by the Tax Collector or Tax Commissioner, as the case might be.
This raises the question as to whether or not a person who filed his application for continuance of registration after February 25th and before April 1st would be qualified to vote in the April 5th election.
H. B. No. 2 provides that effective from the date of the approval of this Act no person shall be permitted to vote unless such person shall have been registered and qualified as provided in H. B. No. 2. This would seem to indicate that a person who qualified after February 25th could not vote in the April 5th election, but inasmuch as under the 1945 Act a person who did not
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vote within the two year period was not automatically disqualified but was only disqualified in the event that he did not file his application for continuance of registration on or before April 1st, it would seem to follow that for th(; purposes of deciding only the point as to who is still on the 1948 general election list, the 1945 Act would still be effective up until and including April 1, 1949, as applied to this class of voters. These persons were qualified to vote in the 1948 general elfoction and their status would not be changed except upon failure to file application for continuance of registration. This only applies to the general election list of 1948 which is to be used to compile a list of! voters eligible to vote in special elections.
Briefly, here are the conclusions which I have reached regarding some of the questions which present themselves.
1. All those persons who were qualified to vote under the old law up until February 25, 1949 are eligible to vote at the April 5th election. This does not preclude the purging of the old list.
2. Those persons who are on the supplemental list as provided in Section 31 of H. B. No. 2 are eligible to vote in the April 5th election.
3. Those persons who file, under the provisions of! the old law, their applications for continuance of registration prior to April 1, 1949 are eligible to vote in the April 5th election.
4. No person may register subsequent to February 25, 1949 under the provisions of the old law.
As th(; Attorney General is prohibited by law from rendering official opinions to persons other than the Governor and heads of the various departments, this letter must be considered as merely my personal views on this subject.
March 4, 1949 TO ALL TAX COLLECTORS AND TAX COMMISSIONERS: TO ALL ORDINARIES:
I am attaching hereto a mimeographed copy of a letter I wrote Judge Arthur S. Oldham of Athens, Georgia in which I have given him my personal views on questions he requested me to answer ,concerning the application of the new Registration Act H. B. No. 2 and the Referendum Resolution H. R. No. 40-208B.
I am furnishing you with a copy of this letter as a matter of information which I hope will be helpful to you and your County Attorney in construing the meaning of two Acts of the Legislature as they relate to certain questions presented by Judge Oldham.
You will please understand that my views in this letter are of a personal nature and cannot be accepted as official or binding on anyone'. I felt compelled to release my unofficial views on these points because of unprecedented demands made from county officials throughout the State.
Of course, your County Attorney is your primary advisor on such matters as the subject of this letter. But I fe;lt that the need for uniformity in the application of our Registration and Voting Laws would justify whatever contribution I might be able to make.
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ELECTIONS-Registration (Unofficia~l) Voters registered under the old law may vote for both the creation of a Board of County Commissioners and the candidates for said Board.
March 16, 1949 Honorable Homer Legg Court of Ordinary
I am enclosing a copy of a letter which I sent to Honorable Dan Dunwody, Tax Commissioner, Macon, Georgia, explaining my reasons for not rendering any unofficial opinions of the new registration law. The letter to Mr. Dunwody is self-explanatory.
Inasmuch as I have already written you one letter regarding your particular problem, I feel that I should answer your letter of March 4th in relation to that same problem.
I realize that the problem confronting you would be a serious one and have given much thought and study to it in an attempt to work out some solution which would make your burden much lighter.
In my letter to you of March 3rd I said that the voters who were registered under the old law could vote for the creation of a Board of Commissioners for Lincoln County since that was a special election. I further said that only those voters who registered under the provisions of the new law could vote for candidates for commissioner.
In order to simplify your situation, I believe that you can treat the election of candidates as a special election and in that way the same people could vote for the creation of the Board and also for the candidates. You can do this on the theory that since you do not now have a Board of Commissioners and there is no set election for commissioners, then this will be in effect a special election.
I know that you will realize that I am only writing you in an attempt to help you work out a practical solution to your problem and I am only offering the above line of reasoning so that you will not be severely handicapped in the holding of your election.
As the Attorney General is prohibited by law from rendering official opinions to persons other than the Governor and heads of the various Departments, this letter must be considered as merely my personal views on this subject.
ELECTIONS-Registration (Unofficial) The new registration law does not apply to municipal elections.
April 12, 1949
Honorable Spence Grayson State Senator
In your letter of April 5 you request me to give you an advisory opmron as to whether the new registration act, H.B. No. 2, approved February 25, 1949, applies to municipal elections.
I have declined to give my views on this same question to a number of city ~~ttorneys heretofore but because of the widespread requ~osts from city attorneys and members of the General Assembly, I f~el constrained to answer your request.
After a careful and exhaustive study of the new registration act, H.B.
No. 2, I am of the opm10n that it does not apply to municipal elections. In support of this conclusion, I call your attention to Provision I of said act which reads as follows:
"Section I. That effective from the date of the approval of this Act no person shall be permitted to vote in any election in this State for presidential electors, for members of Congress, for United States Senators, for Governor; Lieutenant Governor, for State House officers, for members of the General Assembly, for county officers, county commissioners, justices of the peace, for constables, for members of county board of education, where chosen by the people, nor in any other popular election to fill any other State or county office now existing, or hereafter created, nor in any Stat or county election for any purpose whatever, unless such person shall have been registered and qualified as hereinafter provided."
It is obvious from this provision which is intended to define the field the entire act embraces on the subject of legislation and voting that it in no instance refers to municipalities. Consequently, I must conclude that they are excluded except in possible cases where the municipal charter contains provisions requiring registration and/ or qualification under the general law as a condition precedent to voting in a municipal election.
ELECTIONS-Registration (Unofficial) One wishing to register must come to Tax Collector's or Tax Commissioner's office, as the case might be.
May 12, 1949 Honorable Steve Schalasny County Attorney, Monroe County
I am in receipt of your letter of May 9, 1949 in which you ask the f.ollowing question:
"Can the Registrars go from one precinct or militia District to another in the county for the purpose of registering voters or must each and every voter come in personally before the registrars in the Tax Collector's office'?"
I agree with you that there is a conflict between Section 13 of the new registration act and Section 34-105 of the Code of Georgia. Section 13 of the registration act reads as follows:
"The registrars shall keep said registration cards at the tax collector's or tax commissioner's office, where one or more of their number, or one or more of their deputies shall be stationed for the purpose of taking applications for registration. The presence of any such official shall not be required except at such times as said office is open at regular hours."
Section 1 of the registration act reads in part as follows: " . . . . no person shall be permitted to vote . . . . unless cSueh pers.on shall have been registered and qualified as hereinafter provided." Section 13 is a part of the new registration procedure. Therefore, it is my opinion that it is controlling rather than Section 34-105 of the Code. I am of the opinion that a person desiring to register would b compelled to come to the tax collector's or tax commissioner's office in order to do so. Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
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ELECTIONS-Registration (Unofficial) The holding of a special election need not await the effectuation of new registration program.
June 8, 1949 Hon. J. H. Clark County Superintendent
I am pleased to acknowledge receipt of your recent letter in which you ask whethH or not the old registration of voters could be u.sed in a special; county bond election, or whether it would be necessary to wait until the new registration program was put into effect.
Your inquiry is answered by Section 5 of the Act of 1949, which provides as follows:
"At any special election, held before the first list under the terms of this Act shall have been prepared and filed, the general election list of qualified voters of the year 1948, in conjunction with a supplemental list prepared i~ accordance with the special tlection provisions hereafter set forth shall be used. In the same manner the last general election list of qualified voters shall be used for any special election occurring after said list is prepared but before the preparation of a new general election list. Nothing in this section shall be construed so as to prevent the registrars from purging said old list and the supplemental list and remove therefrom those persons not entitled to vote."
In view of the above provision of law, it will not be necessary to wait until the new registration program is effective before holding a special bond election. It would be my suggestion that you contad your county attorney, since this is a county matter and he is in a position to advise you officially in the premises.
Since my official authority is restricted by law to legal matters relating to the State government, my views in this letter must be accepted as unofficial and personal.
ELECTION-Registration (Unofficial) Until after closing of books for registration, a registrar must be in attendance during the regular hours the collector's or tax commissioner's office is open.
June 29, 1949
Honorable W. Harvey Atkinson, Director Property and License Tax Unit Department of Revenue
I am in receipt of your letter of June 28, 1949 in which you state the following:
"The question has arisen in Crisp County relative to the duties of th~ Tax CommissionE:r under the Voters Registration Act. Since the question directly involves the duties of the Tax Commissioner and to some extent his remuneration he has requested a firm ruling from your department in regard to the same. Under Section 14 of the Act he states the registrars have taken the position that it is necessary to take registrations only on one day of each week. Under Section 13 of the Act the commissioner takes the position that the books should be kept open every day throughout 1949.
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"In brief, the question is 'Shall the citizens of Crisp County have the opportunity of registering for voting only one day in each week or on ~very business day in the week throughout 1949'?' "
Inasmuch as this is a matter which addresses itself to the judgment of the County Attorney, I must decline to give an official ruling on this question and this letter should b~ considered as an unofficial opinion.
Section 13 of the new registration act reads as follows: "The registrars shall keep said registration cards at the tax collector's or tax commissioner's office, where one or more of their number, or one or more 'Of their deputies shall be stationed for the purpose of taking applications for registration. The presence of any such official shall not be required except at $uch times as said office is open at regular hours." Section 14 of the act reads as follows: "The registrars shall, in each year in which there is an election for G\Qvernor or memb~rs of the General Assembly, cease their operations of taking applications from persons desiring to vote in such election six months befolre the date of such election. During the period while the general election list is being prepared they may suspend the operation of taking applications from those: desiring to vote in subsequent elections, provided the office shall be kept open at least one day and the same day in each week during! this period for receiving applications, and provided this day is advertised in the official organ of the county." You will notice that the last sentence of Section 13 says, "The presence of any such official shall not be required except at such tim~s as said office iR open at regular hours." I take this to mean that such official shall be required to be at said office during regular business hours for the purpose of taking applications for registration. Section 14 says that the registrars shall only cease taking applications f1om persons desiring to vote in an election for Governo'll or members of tihe General Assembly six months before the date of such election. This means that they must take applications from such persons up to that date. The second s~ntence in Section 14 is evidently the provision which the registrars rely on in taking the position which they hold. The phrase in thail sentence: which reads, "During the period while the general election list is being prepared", does not mean the period during which applications for registration are being received but on the contrary, means the period[ after which all applications have been received and the list of names of those persons qualified lto vote is being prepared. In other words, this period could not be until after that date which is six months before the date of' the election. Even then it is not mandatory that the registrars remain open only one day, but by the use of the word "may", the registrars may use their discretion in this matter. Therefore, in answer to your specific question, I reach the conclusion that the citizens of Crisp County should have the opportunity of registering for voting during the regular hours during which the tax collector's or tax commissioner's office, as the case: may be, is open.
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ELECTIONS-Registration (Unofficial) The only offenses, of those enumerated in the Constitution, which will justify rejection of application are those which constitute a felony.
July 12, 1949
Honorable George D. Lawrence Deputy Registrar Putnam County
I am in receipt of your letter of July 9, 1949 in which you request information regarding the new registration law, and more specifically, Section 17 thereof.
The portion of Section 17 of the new registration act with which we are concerned reads as follows:
"Before the form of the voter's oath is completed, the official in charge shall inquire of the applicant whether he has ever been convicted of~ any felony of crime involving moral turpitude in any court in this or any other State. Jf the answer is in the affirmative a notation shall be made upo~ the card of the crime, the date and the court of conviction. If the offense is one of those enumerated in Paragraph I of Section II of Article II of the Constitution of this State the registrars shall summarily reJect the application. . . . ."
Article II, Section II, Paragraph I of the Constitution of 1945 (Code Section 2-801) reads as follows:
"The General Assembly may provide, from time to time, for the registration of all electors, but the following classes of persons shall not be permitted to register, vote or hold any office, or appointment of honor, or trust in this State, to-wit: 1st. Those who shall have bE:en convicted in any court of competent jurisdiction of treason against the State, of embezzlement of public funds, malfeasance in office, bribery or larceny, or of any crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, unless such persons shall havE~ been pardoned. 2nd. Idiots ami insane persons.
You will note that Section 17 says that the register shall inquire of the applicant whether he has ever been convicted of any felony or crimE: involving moral turpitude in any court in this or any other State. If the applicant says "yes", then the registrar shall make a notation upon thE: card. This does not mean that such a person is automatically prohibited from registering. This is borne out in the next sentence of Section 17 which holds that the applicant shall be rejected for registration only if the offense is one of those enumerated in Article II, SE:ction II, Paragraph I of the Constitution. Those offenses are found in the Code Section which I have cited above. That section says that no person shall be permitted to register who shall have been convicted in any court of competent jurisdiction . . . . of any crime involving moral turpitude, punishable by the laws of this State with imprisonmE:nt in the penitentiary, unless such persons shall have been pardoned.
Only felonies are punishable by imprisonment in the penitentiary. Misdemeanors are not. Therefore, that particular portion could have read "of any felony involving moral turpitude".
I would not attempt to compile a list of these particular offenses which would bar a person from rE:gistering or to formulate a set of rules to be used in determining if a particular offense is one which involves moral turpitude.
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l know that you can see that it would be a practical impossibility to formulate .any ironclad rules regarding these matters.
5ince my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial .and personal.
ELECTIONS-Registration (Unofficial) Under the new registration law the tax comm1ss10ner functions only as a deputy to the Board of Registrars and cannot act until the Board is ap. pointed and begins to function.
July 26, 1949 Honorable B. Z. Cowart Tax Commissioner Bryan County
I am in receipt of your letter of July 8, 1949, the second paragraph of which reads as follows:
"The information I am requesting is whether I, as tax commissioner of Bryan County, should do anything about the reregistration before the Board of Registrars is appointed, and just what my duties are when I am required to perform any duties in connection with Registration under the new law."
I am of the opinion that you are not authorized to perform any duties con. eerning the registration of voters until the Board of Registrars has been appointed.
Section 9 of the Registration Act reads as follows: "The tax commissioner or tax collector of the county shall be a deputy to the board of registrars and shall perform the duties required of him under this Act. Said tax collector or tax commissioner may, with the assent of the board of registrars, designate one or more of his own deputies, to act as additional deputies. The registrars may appoint additional deputies and hire clerical help to aid them in the discharge of their duties." This section says that the tax commissioner shall be a deputy of the board of registrars. Therefore, it follows that your duties will be only as a deputy to the board and you cannot act as such deputy until the board itself is appointed and begins its functions. The board of registrars should inform you as to the duties which they desire you as a deputy to perform. There are certain duties which you are to perform but they are set out in the Act itself and are selfexplanatory, and I could do nothing but repeat the provisions of the Act itself in attempting to ~mumerate your duties. Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and pe:rsonal.
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ELECTIONS-Registration (Unofficial) Applicants desiring to register must do so in person; right to vote absentee ballot is dependent upon personal registration.
July 27, 1949 Honorable James H. Crummey Rochelle, Georgia
This will acknowledge your letter of July 21, 1949, with reference to the new registration law.
I am herewith enclosing you a copy of a letter written to the Honorable L. E. Foster, Tax CollE-ctor, Harris County, by me, dated June 13, 1949, which will aid you in answering the questions propounded by you with reference to registrations under the new law.
June 13, 1949 Honorable L. E. Foster, Tax Collector Harris County
I am pleased to acknowledge your letter of June 7th, in which you state that you do not find any provisions in the new registration law relating to persons still in the military service of the United States.
Th registration law does not relate to the right of persons in the military service to vote an absentee ballot as provided for under the terms of the Soldiers Vote Law. In all instances it is necessary for a person to be properly registered before he can vote either under the terms of the Soldiers Vote Law or an absentee ballot.
You will note that registration is personal, and the voter is required to comply with the ttrms of the Constitution and to subscribe to the oath required therein. This can only be done in person. After he is properly registered the question of military personnel voting under the terms of the Soldiers Vote Law, or persons who are out of the State voting by absentE-e ballot, may be considered. It should be clearly understood however, that the new registration law does not change or modify the rights of military personnel or other persons who desire to vote an absentee ballot, provided of course, such persons are properly registered in accordance with law.
Since my official authority is restricted by law to legal matters relating to the State government, my views in this lE-tter must be accepted as unofficial and personal.
ELECTIONS-Registrlltion (Unofficial) Oath need not be read to applicant unless requested by him but he shall swear or affirm that the information on registration card is true.
August 30, 1949 Honorable G. T. Brock Tax Collector, Habersham County
I am in receipt of your letter of August 12th in which you ask the following question:
"Will it be required of E-ach voters to have to take the oath verbally or will it be alright for them to just sign the oath."
The person taking the registration of the applicant is permitted to fill in
55H
the oath as it appears in Section 11 of the Act. I am of the opm10n that it is not necessary for the registrar to read the complete oath as it appears there to the applicant, but we do believe that the applicant must be required to either swear or affirm that all of the information contained on the registration card is true. This would simply mean that the registrar could have the applicant hold up his right hand and the registrar could ask the applicant, "Do you sv<;ear or affirm that the information contained on this card is true?" The applicant would then say, "I do".
I particularly call your attention to Section 16 of the Act which reads as follows:
"Section. 16. Upon request of the applicant the official taking the application shall read or repeat the voter's oath distinctly to the applicant, and if the applicant cannot sign his name, the said officer shall sign it for him, the applicant making his mark thereto."
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
ELECTIONS-Registration (Unofficial) The new Board of Registrars is authorized to prepare the list of voters.
October 18, 1949 Honorable H. E. Fuller Member, Board of Registrars Talbot County
I am in receipt of your letter of October 1, 1949 in which you ask the following questions:
1. Who is the proper authority to prepare the voters' list of qualified registered voters for the Talbot County election of November 8, 1949?
2. What is the meaning of "supplemental list" as used in Section 5 of the Registration Act?
In answcr to Question 1, I am of the opinion that the new Board of, Registrars is the proper authority to prepare the list of voters. As soon as the new Board was set up, as it was done in your County, the old Board ceased{ to exist and there is only one Board of Registrars at this time.
As to Question 2, I am enclosing copy of an opinion which I rendered on March 4, 1H49 to Honorable Arthur S. Oldham. I believe that this opinion will also answer many of your other questions which will arise in the future.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
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ELEEMOSYNARY INSTITUTIONS-Milledgeville State Hospital Remittances covering bequest to "the Sanitarivm for the mental incompetents maintained by the State of Georgia" are intended to be spent for the patients in addition to any other funds accruing to the institution, and may properly be endorsed to the Patients Welfare Fund.
Honorable J. M. Forrester, Director State Department of Public Welfare
March 19, 1949
I have your letter of March 9, 1949, requesting certain information in regard to the will of Charles Allen Wallace, particularly under Item XVII of the will which you quote as follows:
"The net income from said trust estate shall be paid equally, share and share alike, annually to The Georgia Baptist Orphans Home, Hapeville, Georgia and to the Sanitarium for the mental incompetents maintained by the State of Georgia at Milledgeville, until the year two thousand and thirty-two, at which time the entire remaining corpus of my estate shall be delivered in fee simple to the State of Georgia for use at said Sanitarium for the mental incompetents at Milledgeville, Georgia."
You state in your letter, and I quote in part, "This Department maintains a fund at the State Hospital known as the Patient's Benefits Fund which has been accumulated over a period of years by donations, etc., for the benefit of the patients, and although we feel certain that the net income from this trust estate would be payable to this fund, we are in doubt as to the proper disposition of the corpus of the estate which is payable in year 2032. May we have your opinion as to whether the corpus of the estate should be considered as State funds to be used for general operating costs of the State Hospital maintained for mental incompetents or could both income and corpus be considered as payable to the Patients' Benefits Fund." I understand that you and Mr. Doolittle, Chief of your Accounts and Finance Division, have, since mailing this letter, conferred with a member of my staff as to certain questions involved, and that you have agreed that for the purposes of this opinion, that it is not necessary that we now be concerned with the disposition of the corpus of the trust estate which is payable in the year 2032, and that the immediate question which you desire us to answer is the disposition to be made of any net income .that may be paid annually to the Sanitarium under Item XVII of the will quoted above. That is, that you wish to know if the payments of net income from the trust estate can be paid to the Patients' Benefits Fund, or if the annual income from the trust must be considered as State Funds to be used for the general operating costs of the State Hospital maintained for mental incompetents.
Under Section 108-203 of the Georgia Code Annotated and Section 108-210 of the Georgia Code Annotated Supplement, the trust in question is clearly a charitable trust and falls under the laws of Georgia thereunto appertaining as found in Chapter 108, Section II of the Georgia Code. Under these Georgia statutes, such charitable trusts are looked upon with special favor by the courts and great liberality is shown in trying to effectuate the intentions of the testator and such interpretation falls within the equitable jurisdiction of the courts.
In this instance, by the phrase "to the Sanitarium for the mental incompetents maintained by the State of Georgia at Milledgeville" it is my opinion that
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it is clearly the intE:ntion of the testator that the annual bequest of ,one-half of the net income shall be paid to the Sanitarium and that the Sanitarium may spend the money in any manner they see fit so long as it is spent for the mental incompetents at the Hospital.
I think it would be perfectly proper for the Sanitarium to endorse the check to the Patients' Benefits Fund which you described in your letter if, in turn, the Patients' Benefits Fund spent the proceeds for the benefit of the patients. The trust funds are in addition to and not in lieu of any other funds, Statf! or otherwise, which might accrue to the Hospital. I do not believe that there is sufficient doubt as to the intent of the testator to require a petition of direction from the courts.
ELEEMOSYNARY INSTITUTIONS-Milledgeville State Hospital One not convicted of crime but committed to State Hospital under special plea of insanity may not be discharged by order either of the Board of Pardons and ParolE:s or of the Governor, but only after trial had upon affidavit of relative or friend as to nonexistence or cessation of cause for commitment.
May 27, 1949 Honorable Edward B. Everett, Chairman State Board of Pardons and Paroles
This acknowledges receipt of your letter of May 24, 1949 and copy of your letter of September 3, 1948 regarding Mack Riley who is at present in the Milledgeville State Hospital.
You state that I was requested to render an opinion in connection with this matter on September 3, 1948 and that you have received no reply to your request. I believe that my position is explained by a letter to you of November 16, 1948, copy of which I am enclosing.
The second paragraph of your letter of September 3, 1948 reads as follows: "Since the defendant was not found guilty of any criminal offense and is only being detained at the State Hospital on a special plea of insanity, there is a serious doubt in our minds as to whether or not this J3!oard wo-qld be authorized under the law to issue an order releasing him from the Georgia State Hospital." In your letter of September 3, 1948 you enclosed a letter from Honorable W .E. Ireland, Director, State. De:partment of Public Welfare; a letter from Dr. Y. H. Yarbrough, Superintendent, Milledgeville State Hospital; and an order signed by Honorable Henry H. West, Judge Superior Courts, Western Circuit, in the case of State of Georgia vs. Mack Riley. From a study of all the enclosures, it appe:ars that the pertinent facts :to be considered are as follows: Mack Riley was charged with forgery of two checks, cheating and swindling a taxi cab driver, and suspicion of larceny. He entered a special plea of insanity and was tried by a special jury. The order! of the Judge in the case was as follows: "STATE OF GEORGIA VS. MACK RILEY No. 4040, Clarke Superior Court, July Te:rm, 1947. Special Plea of Insanity.
"The above case having been tried in Clarke Superior Court by a special
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jury on September 11, 1947 and after hearing evidence the jury returned a verdict finding in favor of the special ph,a of insanity.
"It is ordered that the defendant, Mack Riley, be and he is hereby committed to the Milledgeville State Hospital and the Sheriff of Clarke County or his lawful Deputy deliver said defendant to said Hospital, to be held as the law directs, and to be discharged only by warrant or order from the Governor.
"This September 11, 1947. Henry H. West
Judge Superior Courts, W.C." After staying in Milledgeville for some time, it was determim,d that Mack Riley had returned to his normal mental state. Then, Dr. Yarbrough stated that he was anxious to release Riley from the hospital and rbquested Mr. Ireland to secure an Executive Order or warrant for Riley's release from Governor Thompson in accordance with Section 27-1503 of the Georgia Code. Mr. Ireland then requested the State Pardon and Parole Board to issue such an order. Section 27-1503 of thb Code reads as follows: "When a person who has been acquitted of a capital crime, on the grounds of insanity, is committed to the Milledgeville State Hospital, he shall not be discharged therefrom, except by special Act of the legislature. If the crime is not capital, he shall be discharged by warrant or order from the Govbrnor. If sentence is suspended on the ground of insanity, upon restoration to sanity the superintendent shall certify the fact to the presiding judge of the court whtre he was convicted." Assuming that a person could be committed to Milledgevillb State Hospital under the provisions of the above Section, Riley was not committed to the Hospital under the provisions of this Section, but was committed according to the provisions of Section 27-1502 which reads as follows: "Whenever the plba of insanity is filed, it shall be the duty of the court to cause the issue on that plea to be first tried by a special jury, and if found to b.e true, the court shall order the defendant to be deliverbd to the superintendent of the Milledgeville State Hospital, there to remain until discharged in the manner prescribbd by law."
In the case of Richardson v. Hall, et al., 199 Ga. 602, the Court discussed the meaning of the phrase "until discharged in the manner prescribed by law" which apepars in Secti.on 27-1502.
The facts in the Richardson casb were very similar to the facts in the situation with which we are now dealing and the Court made no reference,' whatsoever to Section 27-1503.
Therefore, we can assume that when a person has been committed to Milledgeville State Hospital under the provisions of Section 27-1502, they shall not be discharged as provided in Section 27-1503. In fact, the Court held in the Richardson case that Codb Section 35-237 is to be applied to cases coming under the provisions of Section 27-1502.
The provisions of Section 35-237 are as follows:
"The like demand and trial may be had by all patients who have been adjudged lunatics, if the person demanding it, being relative or friend, will make an affidavit that he believes the alleged cause of commitment did not and does not exist, and that thE: conviction was obtained by fraud, collusion, or mistake. The same right shall exist, when there shall be an affidavit that the cause
56:!
of commitment has ceased to exist, and there shall be a refusal by the superintendent to discharge after demand made."
I realiz~ that the order of the Judge in the Riley case says that Riley is to be discharged only by warrant or order from the Governor.
I am extremely reluctant to discuss the order of the Judge in this case, but for the reasons I have set out above, I believe that the last phrase of the order which reads "and to be discharged only by warrant or order from the Governor" should be disregarded and treated as surplusage.
I reach the conclusion that the Board has no authority to issue an order for the release of Mack Riley. Even under the assumption that the Court's order should be strictly complied with, I am still of the opinion that the Board has no authority to issue such an order. I can find no authority which would enable the Board to issue such an order, even though the powers of the Governor with regard to pardons and paroles were transferred to the Board. This would not, be taken as a transfer to the Board of the power to issue an order releasing such a person as you refer to in your letter from the Milledgeville State Hospital.
EXECUTIVE DEPARTMENT-Governor (Acting) While an Acting Governor makes an appointment to a public office to run concurrently with his term of less than 4 years, which is confirmed by the Senate for such period, such appointment is a nullity but the appointee, while so acting, is a de facto officer.
January 10, 1949
Honorable Herman Talmadge Governor of Georgia
This will acknowledge your request for my opinion on the following question:
If the Constitution or statutes of the State requires an appointment to public office for a fixed term of four years to be made by the G<Jvernor with the advice and consent of the Senate, and if an Acting Governor makes such an appointment to run concurrently with his term, which is less than four years, and sends the name of such appointee to the Senate for confirmation, whereupon the Senate refuses to confirm for the full term but does confirm such appointee for only such period of time as the Acting Governor may exercise the Executive powers, does such action on the part of the Senate amount to a confirmation of such appointment for the full term?
The principle is universally recognized that the Governor of a State has no inherent power of appointment to office, and that his power must be found in the Constitution or statutes of the State, and that appoinments must be made in accordance with such power. See: 42 Am. Jur., 93; State vs. Bowden, 92 S. C. 393; Throop on Public Officers, Sec. 362.
I know of no inherent or granted authority vested in the State Senate when acting as a single body to directly or indirectly, by' any of its acts, change the term of an office which has been fixed by Constitutional or statutory provisions.
In the case of Milton vs. Mitchell, 139 Ga. 624, the SupiJ:eme Court of Georgia said:
"Where under the law an appointment is made by the Governor, subject to
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confirmation by the Senate, such an appointment is not complete until the Senate confirms it, and an appointment made during a recess is not an appointment for the full term unless confirmed by the Senate."
I am of the opinion that where the Constitution or statutes of the State provide for the appointment to a public office for a fixed term and expressly provides that such appointment shall be made by the Governor with the advice and consent of the Senate, such appointment must be made in conformity with the provisions of the Constitution or statutes creating such office and fixing the term thereof.
I am of the further opinion that the Governor is without authority to make an appointment contrary to the provisions of the Constitution and statutes creating a public office and fixing the tHm thereof and providing how the same shall be filled by appointment.
I am of the further opinion that the State Senate, when acting as a ~ngle body, considering the confirmation of an appointment to public office, which office and term was created by Constitutional or statutory provisions, does not have the authority to confirm an appointee to such office for a part of the term fixed by such Constitutional or statutory provision, and that the Senate, when acting in such capacity, must either confirm for the full fixed term or reject.
It is my further opinion that when constitutional or statutory provisions empowering certain officials to make appointments to public office prescribe the manner in which the appointments shall be made, the appointments must be made in the manner so prescribed and that all the essential formalities required by law should be complied with.
It is my opinion that the action of the State Senate, as stated in your question, was not such an action of that body as would confirm the appointee f<>r the term of four years, and that such action was in effect a nullity and was void.
In this connection, I call your attention to the ruling in the case of U&u,ry vs. Hadden, 65 Ga. App. 227, in which the Court of Appeals of Georgia held:
"A person occupying a public office and performing duties thereof, although he may not have been legally appointed or elected to the office, yet, where he holds under an apparc,nt right or under color of title, he is a1 de facto officer. Such apparent right or color of title will be found in appointment of such officer to office by the legally constituted authority to make such appointment, although such appointment may be irregular and not in accordance with the requirements of law."
EXECUTIVE DEPARTMENT-Lieutenant Governor A lieutenant-governor is c,ntitled to subsistence and mileage expenses actually incurred on official business on the same basis as other officers of the State government.
April 1, 1949
Honorable George B. Hamilton Treasurer, State of Georgia
I am pleased to acknowledge your lc,tter of March 25th in which you state the following:
"Senate Resolution 45 adopted by the Senate on February 19, 1949 reads as follows in the fifth paragraph:
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'BE IT FURTHER RESOLVED, that the Lieutenant Governor, President of the Senate, shall n:ceive reimbursem*nt for additional expenses of subsistence, and mileage and shall also be paid for the use of personal car at the rate authorized for officials of the State while in performance of official duties, said subsistence and expenses to be paid during any periord of the year when on official business.'
"I would appreciate an opinion from you as to the legality of paying the Lieutenant Governor subsistence and mileage expense in the performance of his official business during any part of the year or on th~ authority of a Senate resolution ony chargeable to expense of the Senate."
The office of Lieutenant Governor is created under the provisions of Section 2-3007 of the Constitution. The Constitution provides in part as follows:
"There shall be a Lieutenant Governor, who shall be elected at the same time, for the same term, and in the same manner as the Governor. He shall be President of the Senate, and shall receive the sum of $2,000.00 per annum ..."
The Constitution is silent as to the authority of the Lieutenant Governor to receive subsistence and mileage expense in the performance of his official business. There is nothing, however, in the Constitution to prohibit the payment of such actual expenses provided the same are incurred by this officer while in the performance of official business.
I am of the opinion that if the Lieutenant Governor incurs subsistence and mileage expen:se in the performance of an official duty imposed upon him by law that he would be entitled to be compensated by the State for such expenses actually incurred in the performance of such official duties.
The Lieutenant Governor as a Constitutional officer would be entitled to subsistence and mileage expenses actually incurred in the performance of his official business on the same basis as other officers of the State Government are paid.
EXECUTIVE DEPARTMENT-Merit System The substitution in the loyalty oath of the word "affirm" for the word "swear" is acceptable in order to conform to religious belief of affiant.
April 11, 1949
Dr. T. F. Sellers, Director State Department of Public Health
I am in receipt of your letter of April 7, 1949 in which you request information regarding certain phases of the Loyalty Oath Act which was passed by the recent General Assembly.
The second paragraph of your letter reads as follows: "The word 'swear' bas been omitted by two of the employees bl':cause their religious faith forbids the use of the word. Will the word 'affirm' be' sufficient to comply the Loyalty Oath Act, Senate Bill Number 82, which was signed by the Governor on February 23, 1949?" It is my belief that this will be sufficient and will meet with the requirements of the law inasmuch as the word "affirm" is also used in place of the word "swear" in many different forms of oaths. I refer you to Section 38-1701 of the 1933 Code of Georgia which reads as follows: "The sanction of an oath, or affirmation equivalent thereto, shall be
566
necessary to the reception of any oral evidence. The court may frame such affirmation according to the religious faith of th6 witness."
This section although dealing with oaths as given in the trial of cases, nevertheless substantiates my belief that the word "swear" could be stricken and the word "affirm" used.
This does not change the intent of the Legislature. It does not change any of the material part of the oath itself. On the contrary, it merely changes the method in which a person subscribes to the oath.
EXECUTIVE DEPARTMENT-Merit System The words in the Loyalty Oath "I am a citizen of the State of GeorW.a" cannot be subscribed to by citizens of other States and they must the;refore be dismissed.
May 6, 1949 Dr. T. F. Sellers, Director Departm6nt of Public Health
I am in receipt of your letter of May 5th in which you desire further information concerning the Loyalty Oath Act, which was passed at the recent session of the General Assembly.
Paragraph two of your letter reads as follows: "Since this act requires that employ6es who cannot execute this oath be removed from the payroll, and since we have employees who cannot execute this oath because of not being Citizens of Georgia and in some instances not being Citizens of the United States, specimen case attached, does this act abrogate the terms of 6mployment of such a person who was employed by the State at the time of its enactment under the provisions of the State Constitution that 'No ... law impairing the obligations of contracts .... shall be passed' 2-302 (6389) ?" You then ask the following question: "Are we required under the above cited conditions to remove these nonresident employees from the payroll?" Article I, Section III, Paragraph II of the Constitution of Georgia reads as follows: "No Bill of Attainder, ex post facto law, retroactive law, or law impairing the obligation of contracts, or making irrevocable grant of special privileges or immunities, shall be passed." In a previous opinion which I render6d to you, I held that a person could not, under the provisions of the Loyalty Oath Act, strike the phrase "a citizen of the State of Georgia" and insert the phrase "a citizen of the Dominion of Canada". Some employees of the State are not citizens of the State and in some instances are not citizens of the United States These persons would not be able to comply with the provisions of the Loyalty Oath Afct, therefore subjecting themselves to dismissal from State employment. I do not have a copy of the contracts of these persons. However, you have stated to me that these persons were under contract with the State and for the purposes of this opinion I am assuming that these contracts are valid. Therefore, I am of the opinion that the Loyalty Oath Act does impair the obligation of the contracts of those particular persons. I am not attempting to pass upon
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the eonstitutionality of the Loyalty Oath Act. I am holding that the provisions of that Act would be forced to yield to the contracts of hose particular persons to whom you make rtference in your letter.
The point has been raised that since the State is a party to the contract that the constitutional provision would not apply. This point is entirely without merit.
In the case of Georgia Penitentiary Companies Nos. 2 and 3 vs. Nelma., Prin.cipal Keeper, et al., 71 Ga. 301 at page 350, the Supreme Court of Georgia held as follows:
"The eonstitution of the United States provides that no state shall pass any law impairing the obligation of contracts. This court holds that the inhibition in the constitution that prevents a state from passing a law impairing the obligations of contracts, applies to contracts made by the state, as well as to contracts made between citizens of the state."
In answer to your specific question, I am of the opinion that the Loyalty Oath Act does in fact impair the obligation of the contracts of those persons and that you are not required to remove them from the State payroll.
I would like to state at this point that this opinion is not to be construed as a reversal of the opinion which I rendered .to the effect that a person could not under the provisions of the Loyalty Oath Act strike the 1phrase "a citizen of the State of Georgia" and insert the phrase "a citizen of the Dominion of Canada". In that opinion no attempt was made to interpret any question except that particular one and that question was asked only in the light of the ActJ itself.
It is my sincere hope and desire that the confusion resulting from the provisions of the Loyalty Oath Act will be dispensed with at thEi 1950 Session of the General Assembly.
EXECUTIVE DEPARTMENT-Merit System (Unofficial) The Act makes no provision for filing of completed Loyalty Oath forms, which are kept by the respective departments.
May 16, 1949 Honorable Floyd B. Freeman, Clerk Board of Commissiomors Roads and Revenues Greene County
I am in receipt of your letter of May 14, 1949 in which you desire information as to where completed Loyalty Oath forms should be filed.
The Loyalty Oath Act itself makes no provision for the filing of completed forms.
I am enclosing a copy of the Executive Order rendered on1 March 3, 1949 with reference to Loyalty Oath forms. Section 4 Of the Order indicates that each Department keep its own file of completed Loyalty Oath forms and I am of the opinion that this applies to counties as well as to Statehouse Departments.
I believe that you would be correct in filing these forms in the Commissioner's office.
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EXECUTIVE DEPARTMENT-Merit System It is mandatory upon members of local retirement system, upon transferring to the Employees Retirement System of Georgia, to transfer to that System their equity in the local system.
December 30, 1949 Honorable W. Frank DeLamar Executive Secretary Employees' Retirement System of Georgia
I am pleased to acknowledge your letter of December 22, 1949 in which you request my opinion as to whether the Board of Trustees of the Employees' Retirement System of Georgia has the authority to waive that part of Subsection 3 of Section 1 of the Act covering the Employees' Retirement System of Georgia (Ga. Laws 1949, page 138) which reads as follows:
"Any county, city-county or city employee who elects to become a member of this system, who was a member of an existing local retirement system, shall transfer to the Board of Trustees any equity he has in the local system."
It appears that the General Assembly placed this provision in the Act to carry out the plan provided in the Act, "that any employee of a county, citycounty or city board having an existing local retirement system may elect to continue to participate in said existing local system but shall not participate in two systems, and his election shall be final on the commencement date of this Act."
I can fully understand and appreciate the position of the various petitioners in their protest to you and I am sympathetic with their position. However, the question propoundE:d by you resolves itself into the proposition as to whether the Board of Trustees of the Employees' Retirement System has the authority and power to waive or disregard the express provisions of the statute directing that the thing~ complained of be done.
It is my opinion that the provisions of Sub-section 3 of Section 1 of the Employees' Retirement System Act (Ga. Laws 1949, page 138) are mandatory in rE:quiring that a member of an existing local retirement system shall transfer to the Board of Trustees any equity he has in the local system, and ,that the Board of Trustees of the Employees' Retirement System does not have the authority or power to waive or disregard any of the provisions thereof.
The problem is one which addresses itself to the General Assembly and I would suggest that the Board of Trustees of the Employee's Retirement System give due consideration to presenting to the General Assembly a request for an amendment to take care of any inequity that they feel may exist in the Act.
EXECUTIVE DEPARTMENT-Supervisor of Purchases The Supervisor is given wide latitude in application of provision for preference to Georgia-made goods and may purchase other goods where to the best interests of the State.
January 20, 1949 Hon. S. Franklin Skrine Assistant Supervisor of Purchases
I am pleased to acknowledge your letter of January 14th, in which you request an official ruling relative to the status of the Cullom and Ghertner Company, 700 LakE: Avenue, N. E., Atlanta. You desire to know whether this
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concern should be classified as a Georgia company within the purview of Sections 11 and 12 of the Supervisor of Purchases Act of 1937 and ~he ameh.dments thereto.
Section 11 provides as follows: "It shall be the duty of the Supervisor of Purchases in the purchase of and in contracting for any supplies, materials, and equipment and/or printing to giv.e preference as far as may be reasonable and practicable to such materials, supplies, equipment and/ or printing as may b> manufactured or produced in the State of Georgia. It being the intention of this section to use insofar as is practicable Georgia products and/or Georgia labor; Provided, however, that in giving such preference no sacrifice or loss in price or quality should be permitted, and provided further that preference in all cases shall be given to surplus products or articles produced and/or manufactured by other State departm~::nts, institutions or agencies which are available for distribution." Section 12 provides as follows: "The Supervisor of Purchases in awarding of contracts, all things being equal, shall give preference to local sellers of Georgia products when it is possibl~;; to do so and the interest of the State is not sacrificed, and the qu,ality and prices permit it." The above provisions of law do not prohibit the Supervisor of Purchases from contracting with foreign corporations where this officer believes the State will benefit as a result of such arrangement. From the correspondenc~:: and affidavit attached to your request, it appears that Collum and Ghertner employ Georgia labor, and that the raw material which goes into the finish~::d products were purchased l<>cally in the State of Georgia. Should you agree with the contents of this affidavit, it would seem that there could be no question but tihat Georgia labor and Georgia products were used in manufacturing the products, now under consid~::ration. While Section 12 requires that when all things are equal, perference shall be given to local sellers of Georgia products when the1 interest of the Sitate is not sacrificed in the quality or prices thereof, this doe~ not prohibit you from exercising a broad discretion in determining the benefits to be derived by the State entering upon such contracts. From the information contained in the correspondence attached to your letter, I am of the opinion that Collum and Ghertner Company qualify as "local sellers of Georgia products." The mere fact that this Company is incorporated in another State wouldrnot within itself prevent it from becoming a local seller employing local labor and Georgia products in manufacturing the goods undtr consideration. If you find from the facts that this Company has established itself as a local seller of Georgia products, then it would be proper, other things being equal, to award the contract to this concern. The Supervisor of Purchases has great latitude in matters of this character as you will note from the above provisions of law. The paramount c<>ncern of the Supervisor of Purchases is to see to it that the contract as finally entered into on behalf of the Stat91 of Georgia will be to the best interest of the State government and its citizens.
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EXECUTIVE DEPARTMENT-Supervisor of Purchases 1. The Sup&rvisor of Purchases has authority to: (a) Establish specifications; (b) Enforce specifications; (c) Prescribe manner of testing materials; (d) Cancel orders where materials do not conform to specifications. 2. The purchase through the Supervisor of c&rtain types of materi~ls is not mandatory.
July 1, 1949
Honorable B. B. George Supervisor of Purchases
I am in receipt of your letter of June 27, 1949 in which you ask the following questions:
(1) "What authority the Purchasing Department has relative to writing specifications on items requested for purchase by the various departments."
(2) "What authority the Purchasing D&partment has relative to enforcing specifications on items purchased."
(3) "What authority the Purchasing Department has relative to running test samples on items purchased by various departments in order to learn if the items meet specifications."
(4) "What authority the Purchasing Department has relative to cancelling orders when it is l&arned that the item delivered to the State does not meet specifications."
(5) "Also please advise which items, if any, are not required to be purchased through this department."
With regard to questions Nos. (1) and (2), the first part of S&ction 40-1902 of the Annotated Code reads as follows:
"The Supervisor of Purchases shall have power and authority and it shall be his duty subject to the provisions of this Chapter:"
Paragraph B of this Section reads as follows: "To establish and enforce standard specifications which shall apply to all supplies, mattrials and equipment, purchased or to be purchased for the use of the State Government for any of its departments, institutions or agencies." Section 40-1924 reads as follows: "It shall be the duty of the Supervisor of Purchases to formulate, adopt, establish, and/ or modify standard specifications applying to State contracts. In the formulation, adoption and/or modification of any standard specifications, the Supervisor of Purchases shall seek th& advice, assistance, and cooperation of any State department, institution, or agency to ascertain its precise requirements in any given commodity. Each specification adopted for any commodity shall in so far as possible satisfy the requirements of a majority of the State departments, institutions, or ag&ncies which use the same in common. After its adoption each standard specification shall until revised or rescinded apply alike in terms and effect to every State purchase of the commodity describ&d in such specifications. In the preparation of any standard specifications, the Supervisor of Purchases shall have pow&r to make use of any State laboratory for chemical and physical tests in the determination of quality.
It is evident from the above quoted sections that the Supervisor of Purchases is authorized to establish certain specifications which shall apply to
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purchases which are to be used by the various State Departments. It can be readily seen, however, that it is a practical and physical impossibility for the Supervisor of Purchases to set up specifications for every one of the thousands of different articles which are used by the State Departments.
Section 40-1924 provides that the Supervisor of Purchases shall seek the advice, assistance and cooperation of any State Department to ascertain its precise requirements in any given commodity. This section seems to anticipate that specifications will have already been established for every article for which the Supervisor of Purchases receives a requisition. However, as I have pointed out above, there are some articles for which specifications will not have been established.
I am of the opinion that the Supervisor of Purchases has the authority to question any specifications which are written on a requisition which he receives from any State Department. I feel that the Supervisor 'Of Purchases should attempt at all times to satisfy the exact needs of a State Department, because as a matter Qf practical knowledge, each Department is presumed to be aware of its own specific needs to a greater extent than the Supervisor Qf Purchases. However, I feel that the Supervisor of Purchases has the authority to exercise discretion in the matter of purchases and that if, in his good judgment, he feels that one particular article would satisfy the needs of a Department as well as the particular one which is requested by requistion, he has the authority to contact the State Department and ascertain the reasons for the requisitioning, of that particular article. I am of the opinion that he has the authority to enforce specifications.
I feel that the matter of purchases should be one of cooperation between each State Department and the Supervisor of Purchases, and that if any controversy arises, the Supervisor of Purchases and the head of the State Department should attempt to iron out any differences by discussion.
As to question No. (3), the first part of Section 40-1921 reads as follows: "The Supervisor of Purchases may adopt, modify, or abrogate, rules and 1egulations covering the following purposes, in addition to those authorized elsewhere in this Chapter: ...." Paragraph (c) of this Section reads as follows: "Prescribing the manner of inspecting deliveries of supplies, materials, and equipment and making chemical and/or physical tests of samples submitted with bids and samples of deliveries to determine whether deliveries have been made to the departments, institutions, or agencies in compliance with specifications." This Section is self-explanatory. As to question No. (4), I am of the opmwn that the Supervisor of Purchases has the authority to cancel orders when it is learned that the item delivered to the State does not meet specifications. He has the authority to run tests to ascertain whether or not items delivered meet specifications. It would seem to follow that unless he also has the authority to cancel orders that do not meet specifications, then his authority to run tests amounts to a mere nullity. Also, as pointed out in the answer to question No. (2), he has the authority to enforce specifications, and I am of the opinion that this would include the authority to cancel orders when items do not meet specifications. Question No. (5) is answered by Section 40-1916, which reads as follows: "Unless otherwise ordered by the Supervisor of Purchases, the purchase,
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of supplies, materials, and equipment through the Supervisor of Purchases shall not be mandatory in the following cases:
"(a) Technical instruments and supplies and technical booksc and other print&d matter on technical subjects; also manuscripts, maps, books, pamphlets and periodicals for the use of the State library or any other library in the State supported in whole or in part by State funds/'
"(b) Live stock for slaughter, and perishable articles such as fresh vegetables, fresh meat, fish and oysters, butter, eggs, poultry and milk: Provided, no other article shall be considered perishable within the meaning of this clause, unless so classified by the Supervisor of Purchas&s.
" (c) Emergency supplies of drugs, chemicals and sundries, dental supplies and equipment. In the purchasing of emergency supplies under this paragraph it shall be the duty of the department making said purchases to report same to the Supervisor of Purchases, giving the circ*mstances necessitating such purchases.
"(d) Nothing in this Chapter shall be construed to give to the Supervisor of Purchases any supervision over the selection or purchase of school textbooks which is, by law, vested in the Department of Education."
FORESTRY AND GEOLOGY-State Parks The Director of State Parks may in his discretion pay restocking and transportation charge on goods returned to seller by a predecessor.
February 4, 1949 Honorable A. N. Moye Director, State Department of Parks
You request me to advise you if you would be authorized to pay the General Motors Corporation the item of $244.14 referred to in your letter of December 27 as a restocking charge and transportation on parts returned to said Corporation by your predecessor.
After reviewing the files in this matter and giving due consideration to the administrative authority of the Director of the State Parks Department to exercise reasonable discr&tion in accepting or rejecting purchased items, it is my view that the payment of the $244.14 would be authorized by law.
FORESTRY AND GEOLOGY-State Park. Warm Springs Memorial Commission is a Department of the State Government and as such may not insure property, this being a function of the Governor.
April 11, 1949 Honorable Lee S. Trimble Secretary-Treasurer Franklin D. Roosevelt Warm Spring Memorial Commission
I am pleased to acknowledge your letter of April 7, 1949 requesting my opinion as follows:
"Please advise on this point: This Commission is a State Agency with certain powers as to management and conduct of business that differentiates it from a regular department or division of State Government.
"Under the understanding that this Board conducted the affairs of the Memorial, we have placed insurance in amounts and with agencies direct not including this coverage in the State schedule.
"Now comes an inquiry as to why this has not been done, not critical but seeking that information.
"May we have your opinion on the proper course we should follow as this Board has an annual meeting and your opinion can be then submitted."
Although, you do not specifically state what kind of insurance is involved, I assume by your reference to "coverage in the State schedule", that you mean insurance on property in the name of the State.
In my opinion to you on August 25, 1947 I reached the following conclusion:
"I am of the opinion that the Memorial Commission which was created by an Act of the Legislature, approved January 31, 1946', (Ga. L. 1946, pp. 31-34), is not a body corporate and politic and a public corporation, but is a department of the State Government, performing an essential governmental function. The employees of the Commission are State employees....."
I find no specific authority in the Act creating the Commission, authorizing the Commission to insure State property. The general supervision over State property and the protection thereof is delegated, by law, to the Governor in Sections 91-402 and 91-403 of the 1933 Annotated Code. Section 91-402 reads as follows:
"The Governor shall have general supervision over all property of the State, with power to make all necessary regulations for the protection thereof, when not otherwise provided for....."
From the above it is determined that the protection of property of the State is a matter within the duties of the Governor.
Code Section 91-403 requires the Governor to insure all public buildings at one-half their value.
Considering these two sections, it is apparent that the Governor has authority to insure buildings, under Code Section 91-403, and to protect the contents of the buildings by insurance, under the provision of Section 91-402.
The usual procedure to insure State property is for the State agencies to furnish a list of the property and its value to the Governor with the request that the same be insured.
FORESTRY AND GEOLOGY-State Parka 1. The lessee of facilities of a State park whose contract calls for payment of a percentage of the receipts "realized from the operation of these facilities", but who rerents ,certain machines, must pay the State such percentage of the gross receipts of the oper'ator of the machines. 2. Negotiations prior to execution of the contract are merged in the contract.
May 19, 1949 Honorable Herman E. Talmadge Governor, State of Georgia
This will acknowledge receipt of your letter of May 13, requesting an opinion on certain questions raised by Barney Whitaker, Lessee of Jekyll Island Hotel and Facilities. He wants to know whether or not under his lease, a cop'3;';
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of which is attached to your letter, he is due the State: any percentage of the receipts from the subrental of riding devices, pin ball machines, music boxes and other entertainment concessions not mentioned in his lease, and if so, whether he- would be due the State 20% of the gross receipts of the operator of the machines, or 20% of the gross amount that said Whitaker receives from the person subrenting and operating the machines.
He would also like to have an opinion on whether or not the conditions set forth in his proposed bid No. 2, which was accepted, are a part of his lease.
His lease stipulatc::s: "That the said party of the first part for and in consideration of the right to operate the facilities of Jekyll Island State Park, agrees to manage and operate and maintain the hotel, housing and rooming facilities including dining rooms, restaurants and other usual resort concessions, the buildings, grounds, public utilities and all other property and equipment on the properties of Jekyll Island and agrees to pay to the party of the second part in consideration of this lease an amount equal to 20 per cent of the gross receipts realized from the operation of these facilities."
I am of the opinion that the lessee, under the terms of his lease, is due the State of Georgia a percentage of the gross receipts from the riding devices, pin ball machines, music boxes and other entertainment concessions, and that he would be due the State 20% of the gross receipts of the operator of the machines. If Mr. Whitaker operated these machines, there would be no question
about the percentage of the receipts he would be due the State; namely, 20 o/o
on the gross receipts, and the fact that he may subrent or grant concessions to others to operate some of the facilities, would not change the percentage of the gross receipts due the State.
It is my further opinion that the contract between the said Barney E. Whitaker and the State of Georgia, dated April 27, 1949, constitutes a complete agreement between the parties.
While it is well settled law that an offer which is accepted unequivocally, unconditionally and without variance becomes a valid and binding contract, negotiations and stipulations preceding the making of a written contract are merged in the contract. This contract is not an acceptance of any offer made 'by the lc::ssee, makes no reference to any offer made, and, therefore, does not incorporate and make a part of the agreement, the stipulations and conditions ,of offers leading up to the final contract.
FORESTRY AND GEOLOGY-State Parks Warm Springs Memorial Commission may not employ minors under 14 years of age.
June 14, 1949
Honorable Lee S. Trimble Secretary-Treasurer Franklin D. Roosevelt Warm Springs Memorial Commission
In answer to your letter of June 13, 1949, requesting an opinion as to the rights of The Little White House in employing students in vacation season, I wish to advise that the minimum age that any child can be employed in any gainful occupation is 14 years.
This age is fixed by Georgia Law and I refer you to the Annotated Code
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of Georgia of 1933, Section 54-301, as amended in 1947, which reads as follows: "54-301.-Minimum age: in general.-No minor under 14 years of age
shall be employed, permitted or suffered to work in any gainful occupation at any time: Provided that this law shall not be construed to apply to the work of a minor in agriculture, dom~::stic service in private homes, or in employment by a parent or a person standing in place of a parent."
Out of abundance of caution, it would be advisable to obtain the consent of the father of any child employed if the father is living, and if the father is dead, the consent of the child's mother; if both parents are dead, tht consent of the child's guardian.
FORESTRY AND GEOLOGY-State Parks Where performance is secured by adequate bond, except upon competitive bids no revision of an agreement by the lessee of facilities of a State park to pay a percentage of its gross receipts may be made so as to permit paym~::nt of such amount to the Department of State Parks for maintenance which was assumed by the lessee.
July 29, 1949 Honorable A. N. Moye, Director Department of State Parks
This will acknowledge your letter of July 28, 1949 in which you request my opinion as follows:
"At the request of Governor Herman Talmadge I am requesting an opinion from you on the legality of the revision in the contract between the Jekyll Island State Park Committee and Mr. Barney Whitaker for the operation of the State Park there.
"This contract was entered into on the basis of a public letting to the highest and best bidder for the use of these facilities.
"Mr Whitaker is requesting a revision of his contract so that the percentage due the State might be used by this Department to maintain the property and facilities there, thus relieving him of this responsibility under the terms of the contract.
"The Jekyll Island Committee is to mf>et Friday, July 29, at 10:00 in the Governor's Office. We would like to have this opinion at that time if you will be so kind as to furnish us with same."
The contract ent~::red into on the 27th day of April, 1949 between Mr. Barney B. Whitaker and the State of Georgia provides in part as follows:
"That the said party of the first part for and in consideration of the right to opt::rate the facilities of Jekyll Island State Park agrees to manage and operate and maintain the hotel, housing and rooming facilities including dining rooms, restaurants and other usual resort concessions, the buildings, grounds, public utilities and all other property and equipment on the properties of Jekyll Island and agrees to pay to the party of the second part in consideration of this lease an amount equal to 20 per cent of the gross r~::ceipts realized from the operation of these facilities."
* * * ~ *
"It is further agreed betw~::en the parties hereto that before this contract shall become effective said party of the first part shall furnish to the party
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of the second part a bond with corporate surety in the amount of $20,000.00 conditioned for the prompt payment of the lease rental for said facilities and for the return of the lease property at the termination of this lease."
***- *
"It is further agreed between the parties hereto that said party of the first part shall remit to the State Parks Department 20% of the gross receipts of the above named facilities within 15 days after the close of each calendar month."
* * * *' *
"The term of this lease shall be from the date of execution of same to January 15, 1951, however, it is agreed between the parties hereto that in the event the terms and conditions of this contract are violated, this contract may be terminated by the second party upon a thirty (30) days' written notice."
This contract can be terminated upon thirty days' written notice only by the party of the second part.
The State is guaranteed the performance of the above provisions of the contract under the $20,000.00 bond deposited with the State by Mr. Whitaker, the party of the first part, under said contract.
The effect of any so-called revision of the existing contract would be to give away State funds for the reason that the State is adequately secured under the bond to receive the 20 o/o of the gross receipts realized from the operation of these facilities of the term during the contract.
It is my opinion that any so-called revision of the existing contract would amount to the execution of a new contract.
It is my opinion that no revision of the terms of the existing contract can be made except through competitive public bids properly advertised giving all persons who may desire an opportunity to bid on the revision or new contract for the operation and maintenance of the facilities at Jekyll Island State Park.
F'ORESTRY AND GEOLOGY-State Parks Property owned by Warm Spring Foundation used in and necessary to its operation is exempt from taxation; property not so used and necessary is taxable.
October 7, 1949 Honorable L. E. Foster Tax Collector, Harris County
This will acknowledge receipt of your letter dated September 30, 1949, together with copy of a letter from Honorable L. D. Cannon, Assistant Business Manager of the Georgia Warm Springs Foundation, requesting therein an opinion as to the taxability of certain property held by the Georgia Warm Springs Foundation.
In reply thereto, I will refer you to the Constitution of the State of Georgia of 1945 recorded in the Georgia Code of 1933, Section 2-5404, which reads in part as follows:
"2-5404. Exemption from taxation.-The General Assembly may, by law, exempt from taxation all public property; places of religious worship or burial; all institutions of purely public charity; all intangible personal property owned by or irrevocably held in trust for the exclusive benefit of, religious, educational
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and charitable institutions, no part of the net profit from the operation of which can inure to the br,nefit of any private person; all buildings erected for and used as a college, incorporated academy or other seminary of learning, and also all funds or property held or used as endowment by such colleges, incorporated academies or seminaries of learning, provided the same is not invested in real estate . . . ."
It is my considered opinion that any property used by an institution of the character of Georgia Warm Springs Foundation in its operation and necessary thereto is exempted from taxation. However, any real estate owned by such an institution that is not necessary to the direct operation but is merely owned by them is subject to taxation.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
GAME AND FISH-Fishing Salt Water Fish Regulations cover the use of power-drawn nets in taking salt water game fish and/or shrimp from inland salt waters.
July 25, 1949 Honorable J. C. Calhoun, Director State Game and Fish Commission
This will acknowledge receipt of your letter of July 20, 1949, requesting an interpretation of the fourth and fifth lines of the second paragraph of the Salt Water Fish Regulations, which read as follows:
".... the use of power-drawn nets of any kind in taking salt water game fish and shrimp from the inland salt waters, . . . "
The wording of this regulation prohibits the taking of game fish or shrimp, either together or separately.
The word "and," as used in these regulations, can legally mean "r,ither," "or." This identical question has been decided by the Indiana Courts, and their decision is as follows:
"Or" will be construed "and," and "and" will be construed "or," as the necssities of the case may require, so that a complaint for surety of the peace is not bad because using "or" instead of "and." Conklin vs. State, 8 Ind. 458.
GAME AND FISH--Game (Unofficial) Sale in this or other States of ring-necked pheasants raised commercially in Georgia is a misdemeanor.
September 26, 1949
Mr. Horace Hunter Your letter of September 23, received. You request that I construe Sec-
tions 45-301, 35-302 and 45-311 of the Code of Georgia of 1933, relating to game birds and the regulations with reference to their possession and sale, and more especially to pheasants. You request in this connection my opinion as to whether ringed-neck pheasants raised in Georgia could be legally offered for sale.
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Section 45-301 of the Code provides: "The following shall be deemed game birds and animals: Quail, commonly known as bob-white partridges, doves, snipe, woodco*ck, curleys, wild turkeys, grouse, pheasants, deer, squirrels, ducks and marsh hens." Section 45-302 of the Code provides, in part, as follows: "Any person who shall purchase, sell, export for sale, or offer to sell any of the game birds or animals named in Section 45-301, shall be guilty of a_ misdemeanor, ..." Section 45-311 provides as follows: "The hunting or killing of ruffled grouse, otherwise known as native pheasant, shall be prohibited for a period of five years from August 25, 1931: Provided, however, that persons stocking their own lands with nonnative pheasants may perfmit the hunting of same on their own premises from November 20 to February 15, inclusive." You intimate in your letter that due to the fact that the last quoted Section provides for a period where ruffled grouse, otherwise known as native pheasant, was prohibited during this period and at the same time provided that persons stocking their own lands with nonnative pheasants may permit the hunting of same on their own premises for a specified period during the year, would distinguish native and nonnative pheasants, and that the law prohibiting the sale of game bird10 named in Section 45-301 would not apply to ringnecked pheasants as they were not native birds of Georgia. However, it is my opinion that it was the intention of the Legislature in adding the last part of Section 45-311 to modify the first part of said Section which prohibited hunting for a five year period only to the extent of allowing land-owners to permit hunting for nonnative pheasants for the period from November 20 to February 15. I feel that it was not the intention of the Legislature to amend or modify Section 45-302 to such an extent as to allow the sale of game birds named in Section 45-301, and since grouse and pheasants were included in the list of game birds in Section 45-301 without qualification, it is my opinion that the sale, either in this State or other states of ring-necked pheasants raised commercially in Georgia would not be permitted under the Georgia law. Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
GAME AND FISH-Game and Fish Commission The Commission may by its authorized agent bring in any person who shall take fish within the three mile limit and may enforce payment of tax before transportation outside state is permitted.
February 23, 1949 Honorable J. C. Calhoun, Director State Game and Fish Commission
This will acknowledge receipt of your letter of February 14, 1949, in which you ask for an opinion as to whether or not your patrol boats on the coastal waters can legally bring in fishing boats that have caught shrimp in the three mile limit and collect the tax on shrimp as provided by law, before transporting them outside of the State.
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Section 45-819 of the Annotated Code of 1933 reads as follows: "Any person who shall take or catch fish or prawn in this State and transport same beyond the limits of this State without first bringing the same into some Georgia port, having the same weigh\Jd by the Commissioner of Game and Fish or his authorized inspector or other assistant and paying the tax thereon before the same are permitted to leave the boundaries of this State .sha;Il be guilty of a misdemeanor." I am of the opinion, under this Code Section, that you have the legal right to apprehend any fishing boat within the three mile limit that has refused to comply with said Code Section and bring said violators into the nearest port. This Code Section mahs it a misdemeanor to catch or take fish or prawn in this State and transport same beyond the limits of this State without bringing the same into some Georgia port and having the same weighed by the Commissioner of Game and Fish or some authorized inspector or other assistant and paying the tax thereon before leaving the boundaries of this State.
CAME AND FISH--Game and Fish Commis,sion The Commission may delegate to the director the authority to discharge' employees, subject to approval of Commission.
September 9, 1949 Honorable J. C. Calhoun, Director Game and Fish Commission
This is in reply to your letter of Septf:mber 9, 1949 which states as follows: "Will you please advise me if the State Game and Fish Commission has authority under the law to delegate to the Director the authority to hire and fire personnel." It is my opinion that the Game and Fish Commission has authority to authorize the Director to hire and discharge employees, subject of course to the approval of the Commission.
CAME AND FISH--Game and Fish Commission 1. The commission is not required to, but may, bond its wildlife rangers. 2. The Commission may pay the bond premiums or may require the rangers to do so. 3. The salaries of wildlife rangers are not limited by law. 4. Wildlife rangers may not serve warrants.
November 29, 1949 Honorable J. C, Calhoun, Director Game and Fish Commission
This will acknowledge receipt of your letter of recent date in which you ask five questions.
Question 1. Give me an opinion as to whether or not the Game and Fish Commission is required to bond its wildlife rangers.
Answer. No, I do not construe the law to mean that the Game and Fish Commission is required to bond its wildlife rangers.
Question 2. Or if it can bond them if it so desires?
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Answer. Yes, it is my op1mon that if the Game and Fish Commission
should so desire, it may require its wildlife rangers to give a bond. Code Section
45-147 provides as follows: "The Commission shall have power to adopt all rules, regulations and
methods of administration necessary for the efficient operation of the Commission as therein created and established." Acts 1945, p. 404.
So, it is my opinion that the Commission would have authority to (establish rules which would require wildlife rangers to give a reasonable bond.
Question 3. And if the Commission can pay the premiums on the bond or is it required that the premium be charged to each ranger?
Answer. It is my opinion that the Commission would have authority to pay the bond premiums, or it would have authority to require that the rangers pay the bond premiums themselves.
Question 4. Is there any law that limits the salaries paid to these wildlife rangers?
Answer. No, th<:re is no limit fixed by law as to the amount of salaries that may be paid wildlife rangers. Section 45-143 of the 1933 Code of Georgia, Pocket Part, provides as follows:
"The Commission shall appoint and fix the salaries of such other assistants, protectors, and employees, including a uniformed division to be known as Wild Life Rangers, .of such number as may be necessary to carry out the duties
assigned to them by the Commission and Director, within funds available to and
appropriated therefor, all of whom shall serve as the pleasure Qf the Commission. The Commission shall not appoint any persons as assistants, protectors, employees, including Wild Life Rangers, related by blood or marriage in a degree closer than third cousins to the director or members Qf the Commission. (Acts 1943, pp. 128, 131; 1945, pp. 404, 407.)"
So, you may see under the above Code Section that the Commission shall appoint and fix the salaries of the wildlife rangers, and the amount of salary that may be paid is not limited. However, I am sure it was the intention of the Legislature that reasonable salaries would be fixed since the above Code Section also provides that the salaries shall be paid from funds available and appropriated therefor.
This question as to bonds and the amount of salaries paid to members of the wildlife rangers does not apply to State game protectors and deputy game protectors.
Question 5. And whether or not these rangers have authority to serve warrants?
Answer. It is my opinion that the Legislature has not elothed the wildlife rangers with authority to serve warrants. Of course, they may arrest any person who violates the law in their presence even without a warrant.
GAME AND FISH-No-Trespassing Signs Notices forbidding trespassing shall be placed in two or more locations on the property and the Ordinary, or Commissioner of Roads and Revenues, if one there be, shall keep a record thereof.
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Honorable Lee S. Trimble Secretary-Treasurer Warm Springs Memorial Commission
February 7, 1949
I have your letter of January 31, 1949 in which you request my opinion as to the proper procedure to be followed in posting the lands of the Commission so as to prohibit hunting thereon.
The law provides that it is the duty of a landowner desiring to post property to post a notice in two or more places on each tract of land forbidding all persons to hunt thereon, etc.
Having so posted the property, the ordinaries or the commissioners of roads and revenues in the counties where such board exist, are required to enter a record of such posting in a book to be used for that purpose.
I do not know offhand whether the prop.er officials in the counties in question will be the ordinaries or the commissioners, but that you may determine by inquiry.
Attached hereto find an excerpt of the Georgia Code applicable to your request.
"45-401. Hunting on land or fishing in water of another.-Any person who shall hunt with dogs, firearms, or in any other way on any lands, enclosed or unenclosed, of another, or fish with hook, seine, nets, or in any other way in any streams, lakes, ponds or lagoons of another, after being forbidden so to do or when ordered to desist therefrom by the owner thereof or by the person having the same in charge or his agent, shall be guilty of a misdemeanor. It. shall be the duty of the landowners to post a notice in two or more places on each tract of land, forbidding all persons to hunt thereon or fish in the streams, ponds, lakes, or lagoons belonging to said landowners.
"45-402. Register for posting lands.-It shall be the duty of the ordinaries, or the commissioners of roads and revenues in the counties where such boards exist, to furnish a suitable book, to be known as the 'register for posting lands,' to the clerk of the superior court of their respective counties, in which
the landowner shall register his or her name, after having first stated in the presence of the officers in charge of said book that the two notices have already been posted upon said landowner's land, as required by the preceding
section. "45-403. Posting and registration, effect of.-The posting of the notices
at two or more places on each tract of land (although such notices, from any cause,, shall thereafter be defaced, knocked down, or destroyed) and the registering of the landowner's name in the register for posting lands shall be legal notice under this Chapter.
"45-404. Regi~tration, how made.-It shall be the duty of the tax receivers or county tax commissioners, as the case may be, of the several counties to carry the register for posting lands with them on all their rounds when receiving tax returns, and all landowners who have placed a notice at two or more points on their lands as required by this Chapter are hereby authorized to register their names in the register Ifor posted lands in the presence of the tax receiver or county tax commissioner, as the case may be, of their counties, in the same way as if registered in the pres.ence of the clerks of the superior courts of their several counties. At the time of the rE:gistering of the names of the landowners, he shall also register a description of the lands that have been posted, giving the.
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district in which said lands are located and either the numbers of the lots or other description of the lands sufficient to put the public on notice of the lands refE:rred to. For registering said name and description the officer in whose presence the registry is made is authorized to charge and collect a fe~> of 25 cents from the person so registering.
"45-405. Register, where kept.-The register for postE:d lands shall be kept in the office of the clerk of the superior court, except while being used by the tax receiver or tax commissioner, as the casE: may be, while making his rounds; it being the purpose of this Chapter to afford the parties posting the lands, as well as the parties desiring to hunt or fish, the privilege and opportunity of examining said register."
GENERAL ASSEMBLY-Member (Unofficial) A member of the Legislature may serve as a member of the County Board of Education.
January 21, 1949 Mr. Carl Broome
Brantley Enterprise I am pleased to acknowledge your letter of January 12th wherein you
asked: "Can a member of the Georgia Legislature serve on the County Board of Education?" and, "Is there any legal provision estopping a mE:mber of the General Assembly from serving on the County Board of Education?
The law prohibits the Attorney General from rendering official opinions to anyone except the Governor and the heads of the various departments. However, I am glad to assist you in any way I can.
The qualifications of members of the County Board of Education are set forth in Gode Section 32-903 of the 1933 Code Annotated, which is as follows:
"Qualifications of members.-The grand jury in selecting the members of the county board of education shall not select one of their own number then in session, nor shall they select any two of those selected from the same militia district or locality, nor shall they select any person who resides within the limits of a local school system operated independent of the county board of education, but shall apportion members of the board as far as practicable over the county; they shall select men of good moral character, who shall have at least a fair knowledge of the E:lementary branches of an English education and be favorable to the common school system. Whenever a member of the board of education moves his residence into a militia district where another member of the board resides, or into a district or municipality that has an independent local school systtm, the member changing his residence shall immediately cease to be on the board and the vacancy shall be filled as required by law."
The eligibility .of members of the General Assembly is set forth in Article III, Paragraph VI of the Constitution of 1945, which reads as follows:
"Eligibility; appointments forbidden.-No person holding a military commission, or other appointment, or office, having any emolument, or compensation annE:xed thereto, under this State, or the United States, or either of them except Justices of the Peace and officers of the militia, nor any defiaulter for public money, or for any legal taxes required of him shall have\. a seat in either house; nor shall any Senator, or Representative, after his qualifications as such,
583
be elected by the General Assembly, or appointed by the Governor, either with or without the advice and consent of the Senate, to any office or appointment having any emolument annexed thereto, during the time for which he shall have been elected, unless he shall first resign his seat, provided, however, that during the term for which he was elected no Senator or Representative shall be appointed to any civil office which has been created during such term."
The Appellate Courts have held that a member of the County Board of Education is a county officer. See Stanford v. Lynch, et al., 147 Ga. 518.
I can find nothing in the law that prohibits a member of the Legislature from serving as a member of the Gounty Board of Education.
GENERAL ASSEMBLY-Members (Unofficiail) Members of the General Assembly are not by reason thereof disqualified as jurors.
Honorable John C. Peterson Senator, Fifteenth District
November 1, 1949
Pursuant to our conversation of a few days ago, I am writing you this letter concerning the qualifications of a Legislator to serve on the Grand Jury.
Section 59-113 of the Georgia Code reads as follows: "Any person summoned to serve as a juror in any court of this State shall be excused from such service during his absence from such court, when his absence is caused by his attendance as a legislator upon the General Assembly." This section does not work a disqualification upon a member of the Legislature and I know of no statute which would prevent you form serving upon the Grand Jury.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
GENERAL ASSEMBLY-Mem.bers (Unofficial) A person in default in the payment of legal taxes may not be seated as a Representative.
Mr. G. C. Dekle, Jr., Attorney at Law
December 27, 1949
I am pleased to acknowledge your letter of December 16'th requesting an opinion as to whether a person can be legally seated as the Representative if he is behind with his taxes, and asking when I will be in your section of the State. I would be delighted to speak to the Millen Rotary Club any time a satisfactory date can be arranged.
In regard to your other question, I refer you to Article III, Section IV, Paragraph VI (Code Section 2-1606), which provides 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
584
of the militia, nor any defaulter for public: money, or for any legal laxes required of him shall have a seat in either house; ...."
While the above provisions apparently arj:l clear on the emphasized portions, your attention is direct"'d to Article III, Section VII, Paragraph I, (Code Section 2-1901) which provides:
"Each House shall .b.e the judge of the election, returns, and qualifications of its members and shall have power to punish them for disorderly behavior, or misconduct, by censure, fine, imprisonm"'nt, or expulsion; but no member shall be expelled, except by a vote of two-thirds of the House to which he belongs." (Emphasis provided.)
I assume from your letter that the person has not been seated as a m(>mber of the House. Therefore, apparently the procedure would be for a member of the House to raise the question of eligibility of the person immediately prior to the time of administering the oath since the constitutional provision above cited and codified as Section 2-1901 provides that the General Assembly shall be the judge of the qualification of its members.
Sinct: my official authority is restricted by law to legal matters relating to the State Government, my views in this letter. must be accepted as unofficial and personal.
INSURANCE-Companies The Act of March, 1947, authorizing insurance companies doing. business "by virtue of the laws of this State" to acquire real property for purpose of lease, etc. do-s not apply to foreign corporations.
Hon. Zaek D. Cravey, Insurance Commissioner
February 17, 1949
State Capitol
In Re: Insurance Companies-Investment of Assets in Real EstateNo. 361 (House Bill No. 212)
I am pleased to acknowledge your letter of February 16'th, in which you ask whether thE<_ Act approved March 28, 1947, (Ga. L. 1947, pp. 1496-1498) applies to companies organized under the laws of other states and only licensed to do business in Georgia.
The caption of the Act in question reads in part as follows:
"An Act to authorize every insurance company organized and doing business by virtue of the laws of this State to acquire and hold real property for the purpose of renting and leasing same, the investments in such property not to
exceed 5% of its total assets, . . . ." Section I of the Act reads in part as follows:
"That every insurance company organized and doing business by virtue of the laws of this State shall have authority, in addition to all other investments authorized by law, to invest assets in real estate acquired for the purpose of
l(>asing the same to any person for a period of not less than 20 years, . . . .'" I am of the opinion that the above law applies only to insurance companies
which are "organized and doing business by virtue of the laws of this State." A foreign insurance company would not be considered as being organized under
the laws of this State. My ruling in connection with the Act of 1947 is in keeping with the admin-
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istrative practice employed by the Insurance Commissioner for many years in reference to Code Section 56-224. This Section provides in part:
"Every insurance company organized and doing business by virtue of the laws of this State shall have authority to invest its money and assets in the following securities, to-wit: ..."
This law has been construed administratively to apply only to domestic insuranc companies. While the above Code Section has been amended several times, the last amendment being in 1945, I think nevertheless, that the administrative interpretation of the law is entitled to much weight. The language of
Section 56-224 is very similar to that used by the Legislature in the Aic1i of
1947, in that both laws apply to insurance companies "organized and doing business by virtue of the laws of this State." I am therefore of the opinion that the Act of 1947 does not apply to forE;ign insurance companies.
INSURANCE-Excen Insurance Agents Law Excess Insurance Agents Law did not repeal Motor Common Carriers Act and motor common carriers in lieu of bond must furnish indemnity insurance in a company authorized to do business in Georgia.
Hon. Walter R. McDonald, Chairman Georgia Public Service Commission
June 22, 1949
I am pleasE;d to acknowledge your letter of June 9, 1949, in which you request an official opinion on the question of whether House Bill No. 663, the
same being entitled "Excess Insurance Agents Law," (Ga. L. 1949, pp. 1201-
1204) supersedes or repeals by implication, Section 68-612 of the Motor Common Carriers Act, the same having been enact6d in 1937.
The Excess Insurance Agents Law enacted in 1949 provides that persons licensed to act as agents of fire or casualty insurers in G!eorgia, may also be licensed by the Insurance Commissioner to place excess lines of fire or casualty insurance in compani6s or insurers which are not admitted to do business in this State under certain specified conditions set forth in the Act. Section 68-612 of the Motor Common Carriers Act of 1937 provides as follows:
"No certificate shall be issued or continued in operation unless the holder thereof shall give and maintain bond, with adequate security, for the protection, in case of passenger vehicles, of the passengers and baggage carried, and of the public against injury proximately caused by the negligence of such motor common carrier, its servants or agents; and in cases of vehicles transporting freight, to secure the owner or person entitled to recover therefor against loss or damage to such freight for which the motor common carrier may be legally liable; and for the protection of the public against injuries proximately caused by the negligence of such motor carrier, its servants or agents. The Commission shall approve, determine and fix the amount of such bonds, and shall prescribe the provisions and limitations thereof, and such bonds shaH be for the benefit of and subject to suit or action thereon by any person who shall sustain actionable injury or loss protected thereby. The Co,mlmiasion may, in its
dis.cretion, allow the holder of such certificate to file, in lieu .of such bond a
policy of indemnity inaurance in some indem,nity insurance company authorized to do businesa in the State of Georgia, ~hich policy must substantially conform
586
to ala of the P'rovisions hereof relating to bonds, and m.ust likewise be approved
by the Commission. The Commission shall have power to permit self-insurance in lieu of a bond or policy of indemnity insurance, whenever, in its opinion, the financial ability of the motor carrier so warrants. It shall be permissible under this Chapter for any person having a cause of action arising hereunder in tort or contract, to join in the same suit the motor carrier and its surety, in the EoVei;t a bond is given. If a policy of ind.emnity insurance is given in lieu
of bond, it shall be permissible to join the motor carrier and the insuran.ce
carrier in the same action whether arising in tort or contrad." (Emphasis supplied.)
It is clear that Section 68-612 places a discretion in the Commission as to whether or not a bond or a policy of indemnity insurance shall be required of carriers coming under its jurisdiction. If the Commission Eoxercises its discretion in favor of permitting the carrier to provide indemnity insurance, then it is necessary that such insurance be carried with a "company authorized to do business in the State of Georgia" and that such policy substantially conform to all of the provisions of law relating to bonds, and that the same be approv:d by the Commission. It is the purpose of Section 68-612 to protect the public against injury which may be caused by the negligence of the motor common carrier, its servants or agents. It should also be noted that Section 68-612 authorizes a suit to be brought jointly against the motor carrier and the insurance carrier or the bonding company, as the case may be, in the same cause of action.
With the above pertinent provisions of Section 6'8-612, supra, before us, the question presented is whether or not the Act of 1949; authorizing insurance agents to place excess lines of fire or casualty insurance in companies not admitted to do business in this State in any way r:peals by implication or alters the above stated Act of 1937. In Cornwell v. Atlanta Trust Company, 177 Ga. p. 303, the Court held as follows:
"Repeals by implication are not favored, and the later statute will not be construed to repeal a prior act on the same subject where there is no irreconciliable repugnancy between the two."
It is clear that the Act of 1937 was not expressly rep:aled by the Act of 1949, since no mention was made of the Motor Carrier Act in the later legislation. It likewise must be conceded that Section 68-612, supra, is not in irreconciliable conflict with the later act, since the later act does not attempt to deal with motor common carriers coming under the jurisdiction of the Public Service Commission. The two acts are related to different subject matters. The former act is r:stricted in its application to motor carriers subject to the jurisdiction of the Public Service Commission. These carriers are required to furnish adequate protection in favor of the public against any acts of negligence which they might commit. Such bonds or indemnity insurance, as the case may be, must likewise have the approval of the Public Service Commission. It should also be noted that a person who suffers injury by reason of the negligence of a motor common carrier may join in the same action, the bonding company, or the insurance carrier which ever form of protection has been adopted and approved by the Commission. It is the purpose of Section 68-612 to give additional protection to the public in reference to this particular class of motor vehicles which are subj:ct to the jurisdiction of the Public Service Commission. The Act of 1949 is a general law which tends to cover the bll'oad subject of
587
,excess insurance. This act however, does not manifest an intention or design to repeal the special or particular law dealing with motor common carriers which are subject to the Public Service Commission. There is nothing in the later act which in any way tends to modify or alter the insurance laws r,elating to motor common carriers as set forth in Section 68-612, supra.
In Davis et al. v. Dougherty County, et al., 116 Ga. p. 491, the following principle of law on this subject is stated by the Supreme Court of Georgia:
"A general law will not be so 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."
The above principle of law was affirmed in the recent case of Copland v. Wohlwender, 197 Ga. at page 793.
In view of the above principles of law, I am of the opinion that the "Excess Insurance Agents Law" of 1949 did not repeal Section 68-612 of the Motor Common Carriers Act, and that this law still remains of force and effe,ct in reference to motor common carriers coming under the jurisdiction of the Public Service Commission. In instances where the Commission permits a motor carrier to file indemnity insurance in lieu of a bond, it becomes necessary for such insurance contract to be approved by the Commission.
INSURANCE-Hospitalization Discusses various points of difference between charter for corporation to establish a hospital, with capital stock and to be operated for profit, and a hospital service non-profit corporation.
April 7, 1949 Honorable Zack D. Cravey Insurance Commissioner
I have your letter of March 21, 1949, in which you attach a letter from Mr. M. C. Barwick, an Attorney at Louisville, Georgia, with a copy of the application for a charter to which Mr. Barwick refers in his letter.
You request my opinion on the issues raised in Mr. Barwick's letter. As you stated, Mr. Barwick desires to know if the charter for the Jefferson Hospital Foundation, Inc., a copy of which he enclosed, can be used as it is as a Hospital Service-Nonprofit Corporation, under Chapter 99-10 of the Georgia Code Annotated Supplement.
Mr. Barwick points out that the incorporators under the charter, which be has already obtained, have never paid in their capital stock and, in fact, have never organized under their charter. Mr. Barwick seems to be of the opinion that his present charter is broad enough to qualify and do business under Chapter 99-10 of the Georgia Code. He states that he bases this opinion on Section 28-1828 (h) and Section 28-1828 (i) of the Georgia Code. As there are no such sections in the Georgia Code, I assume that this is a typographical error and that Mr. Barwick was considering Sections 22-1828 (h) and (i).
In an effort to determine the sufficiency of the charter of Mr. Barwick's existing corporation to qualify and do business under Chapter 99-10, I find it imperative not only to consider the charter of the present corporation as a whole and as it now stands, but also to try to determine whether or not each section of his existing charter meets the specific requirements of the pertinent provisions of the Code relating to such section.
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Under Mr. Barwick's existing chartr,r the incorporators have incorporated for a period of thirty-five years under the name and style of the Jefferson Hospital Foundation, Inc. Section 2 of the charter states that the capital stock of said corporation shall be the sum of $3,000.00 divided into thirty shares of the par value of $100.00 each~ Even though Mr. Barwick states that the incorporators have never paid in this capital stock and have never organized under this chartr,r, and that they have now decided to avail themselves of the provisions of Chapter 99-10 of the Code relating to Hospital Service-Nonprofit Corporations, and to leave out altogether the capital stock provision referred to, it would seem to me that this provision in regard to the capital stock is an integral part of the charter as it has been grantr,d and may not now be ignored merely because it is the desire of the incorporators to do so.
In order to have a nonprofit corporation under the Corporation Act of 1938, it is provided in Georgia Code Annotated Supplement, Sr,ction 22-1881, that:
"A corporation not organized for pecuniary gain or profit and without capital stock may be incorporated under the terms of this Chapter and such corporation need not comply with the provisions of this Chapter relating to capital stock and other matters not pertinent to its organization.''
In view of the fact that the existing charter especially provided for capital stock, I am of the opinion that such chartered corporation may not now be construed a nonprofit corporation without capital stock merely because the incorporators decide not to pay in this capital stock.
Section 3 of Mr. Barwick's charter states that the object of said corporation is the conduct and operation of a hospital in Louisville, Jefferson County, Georgia for the care and treatment of patients of any practicing physician in Jefferson County, Georgia, or the surrounding territory.
The charter does not expressly state, one way or the other, whether or not the said corporation shall be a profit or nonprofit corporation, but I am of the opinion that in vi6w of the fact that the corporation has capital stock of the sum of $3,000.00 and in view of the fact that there is no stated nor even implied provision that it shall be a non-profit corporation, that such corporation would be a corporation organized for pecuniary gain or profit.
Georgia Code Annotated Supplement, Section 99-1004 dealing with Hospital Service-Nonprofit Corporations, states specifically that said corporations shall be governed and conducted as nonprofit organizations. It would seem further, therefore, that the said existing charter as it now stands would not meet the requirements of Chapter 99-10 of the Code as to the nonprofit feature of a corporation r,stablished in accordance with Chapter 99-10.
Chapter 99-10 further provides that Hospital Service-Nonprofit Corporations may be incorporated for the purpose of establishing, maintaining and operating a nonprofit hospital service plan for the sole purpose of offering hospital service to their members in consideration of the payment by such members of a definite sum for the hospital care so contracted to be furnished. The 6Xisting charter states that the object of said corporation is to conduct and operate a hospital for the care and treatment of patients in and around Jefferson County, Georgia. It is my opinion that a corporation the object of which is to conduct and operate a hospital for the care of patients cannot be said to be a corporation for the purpos6' of establishing and maintaining and operating a nonprofit hospital service plan for the sole purpose of offering and furnishing
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hospital service to their members in consideration of the payment by such members of a definite sum for the hospital care so contracted to be furnished.
The said existing charter provides that the object of the corporation is the conduct and operation of a hospital for the care and treatment of patients of any physician of Jefferson County, Georgia, or the surrounding territory, which seems at variance with Chapter 99-10 which provides that the only persons that may be served by a Hospital Service Nonprofit Corporation are those persons who have made application for and who have become members of said Nonprofit Hospital Service Corporation under a contract which shall entitle each member to such care for such period of time as is provided therein.
Section 6 of the existing corporation provides that the incorporators desire the right to buy, sell, or lease hospital buildings and equipment in the operation of the affairs of said corporation and to do any and all other acts which may be found necessary for the operation of a modern hospital and the care and treatment of patients that may be treated and cared for therein. I am of the ()pinion that no hospital service nonprofit corporation incorporated for the purpose of establishing, maintaining and operating a nonprofit hospital service plan would have the right to buy and sell or lease hospital buildings and equipment ()r to do any and all other acts necessary for the operation of a modern hospital.
I feel that it is clear that the purpose of a corporation organized pursuant to Chapter 99-10 is to establish and maintain a Hospital Service Plan whereby hospital care may be provided by said corporation through an established hospital "Vith which it has contracted for such care. Indeed, this is exactly what is proYided by Georgia Code Annotated Supplement Section 99-1001. If, therefore, a corporat)on attempted to operate a hospital itself it would not be operating a Service Plan whereby care could be provided by said corporation through established hospitals with which the Hospital Service-Nonprofit Corporation has contracted.
In regard to Code Section 22-1828, paragraphs (h) and (i), to which I presume Mr. Barwick has reference when he states that he feels his existing charter is broad enough to qualify and do business under Chapter 99-10 of the Code, it may be stated that this Code Section provides that .subject to such limitation, if any, as may ~.e contained in ita charter or any amendment thereto, every corporation shall have the following powers: Under paragraph (h),
"To do all and ev:rything necessary and proper for the accomplishment of the objects enumerated in the charter or any amendments thereof or necessary or incidental to the protection and benefit of the corporation and in general to carry on any lawful business necessary or incidental to the attainment cf the obj'ects of the corporation."
Paragraph (i) deals generally with the classes of stock that may be issued and the rights of stockholders of such stock. It is my opinion, however, that by an effort to make a Hospital Service-Nonprofit Corporation out of his existing chartered corporation, Mr. Barwick would be exceeding the limitations contained in his presently existing charter, which is contrary to that provided by Code Section 22-1828 taken in its entirety.
The chartered object of the existing corporation is the conduct and operation of a hospital and, in my opinion, it is not necessary or proper for the accomplishment of that object, or necessary or incidental to the protection and benefit of a corporation with that object, to operate a nonprofit hospital service plan.
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I feel further, that a Hospital Service-Nonprofit Corporation must be incorporated for the particular purpose and with the object of establishing, maintaining, and optrating a nonprofit hospital service plan and cannot be brought about as a by-product of a corporation formed with the express object of operating a hospital.
While I have been able to find no adjudication on the particular question raised by Mr. Barwick, I have attempted to follow the general rule which the courts of this State seem to have followed in regard to the powers of corporations in general, and it seems to have been held that corporations have no rights or powers other than those expressly conferred by law or the charter, or which arises therefrom by necessary implication, and that a corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its existence. The conduct of a corporation as a legal entity must conform, and its indulgences are limited, to the express terms of its charter. See: Kohlruss v. Zachery, 139 Ga. 625, 632; Methodist Church v. City of Atlanta, 76 Ga. 181 (2); Cen:tral R. R. Co. v. Collins, 40 Ga. 619; Leverett v. Midland Georgia Railway Co,., 96 Ga. 385, 389; Plant v. Macon Oil and Ice Co., 103 Ga. 66'6, 670; Savannah Ice Co. v. Canal-Louisiana Bank & Trust Co., 12 Ga. App. 818; Frederick v. City of Auguata, 5 Ga. 561; Shifllett v. John W. Kelly & Co., 16 Ga. App. 91; Odu.m v. South Atlantic Casket Co., 30 Ga. App. 166, 175.
Mr. Barwick also asks a construction of Code Section 99-1011. He desires to know if this Code Section prohibits a contract by a member with a hospital service plan corporation which contract would allow the member to choose his own physician and to further allow the corporation to contract to pay the bill of such physician.
The question is a close one and I have found no cases concerning it, but I am of the opinion that a Hospital ServicE:-Nonprofit Corporation chartered in accordance with Chapter 99-10 could not within its chartered powers contract to pay for the services of a physician even though the member made his {)Wn choice of physician and even though the physician treated the member as his conscience and skill dictatE:d.
Section 99-1011 is as follows: "Prohi.b,ition against contracting for .medical services.-Such corporations shall not contract to furnish to the member a physician or any medical service, nor shall said corporation contract to practice medicine in any manner, nor shall said. corporation control or attempt to control the relations existing between said member and his physician, but said corporation shall confine its activities to rendering hospital service only through such type of hospitals as are in this ChaptE:r specified, without restricting the right of the patient to obtain the services of any licensed doctor of medicine; and any hospital, which shall contract with such corporation for the furnishing of hospital care, shall accept a member or subscriber of said corporation with the physician of his choice in charge of his treatment at such hospital." The first sentence of the foregoing Section says that a Hospital SE:rviceNonprofit Corporation shall not contract to furnish to a member a physician or any medical sE:rvices. I am inclined to believe that the intent of this sentence, considered with the intent of Chapter 99-10 as a whole, would be construed to be that the corporation should not contract to furnish or pay for the services
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of a physician. You will note that Section 99-1011 also provides that said corporation shall confine its activities to rendering hospital service. Section 99-1001 provides that a Hospital Service-Nonprofit Corporation is for the purpose of operating a hospital service plan whereby hospital care may be provided by said corporation through an established hospital with which it has contracted for such care. And Section 99-1004 says that such corporation shall be for the sole purpose of offering and furnis.hing hospital service to their members.
I am of the belief that the term "hospital service" does not include the services of a physician and that to include in the contract of the corporation with a member a provision whereby the corporation would pay for a physician's services would be outside of the sole purpose for which a Hospital ServiceNonprofit Corporation may be created.
INTOXICATING LIQUORS-Alcoholic Beverages A military or naval installation ceded by Georgia to the United States may buy distilled spirits from a distiller without payment of Georgia tax or warehouse charges.
Honorable Charles D. Redwine State Revenue Commissioner
February 16, 1949
I am pleased to acknowledge your request for an opinion relative to whether Army and Navy Installations may buy alcoholic beverages direct from the distillers without the payment of any Georgia excise tax or warehouse charge.
As you know, Code Section 58-1025 provides that wholesalers can only sell to licensed retailers and licensed wholesalers. From a legal standpoint, therefore, Georgia wholesalers cannot legally sell alcoholic beverages to an officers' club unless it has a retail license.
Code Section 58-1020 provides that any alcoholic beverages delivered in this State must be delivered to a State Warehouse and if this procedure is not followed it is a misdemeanor.
An important piece to this puzzle is the fact that the Legislature in 1927 enacted a statute which provides as follows:
"Be it further enacted by the authority aforesaid that the exclusive jurisdiction in and over any land so acquired by the United States shall be and the same is hereby ceded to the United States for all purposes, except that the State retains the right to serve thereon all civil and criminal processes issued under authority of the State; but the jurisdiction so ceded shall continue no longer than the said Uuited States shall own such lands."
Ga. Laws 1927, page 352, Sec. 2. In view of the above, the question now narrows to whether an interstate shipment of alcoholic beverages destined to a reservation which is owned by the United States within the State of Georgia is under our jurisdiction as far as taxation and supervision is concernE:d.
In the case of Johnson, et al vs. Yellow Cab Tran,sit Co., 321 U. S. 383, the Supreme Court ruled on the following facts: Army officers pooled their money and sent an order to a distiller located outside of Oklahoma for some 250 cases of whiskey. Oklahoma is a completely dry State and the only alcoholic beverages allowed are for medicinal, scientific and sacramental purposes.
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To bring such whiskey in the State one had to secure a permit from the Alcohol Control Department. This consignment of whiskey was confiscated in Oklahoma City by State authorities. The carrier requested the Federal Court to issue a mandatory injunction requiring the State officials to release the whiskey and allow it to proceed to Fort Sill. Mr. Justice Black wrote the opinion for the Supreme Court and the Court stated the following:
"Oklahoma statute prohibiting transportation of intoxicating liquor into the State without a permit, and authorizing a permit for transportation of liquor into Oklahoma only for scientific, mechanical, medicinal, industrial or sacramental purposes, is inapplicable to liquor imported into Fort Sill military reservation located within exterior boundaries of Oklahoma, and the Oklahoma law does not justify seizure of interstate shipment of liquor to t"h.e reservation."
In the case of Collins, et al vs. Yosemite Park & Curry COIJnpany, 304 U. S. 518, the Supreme Court ruled that when a State ceded property to the United States with the express reservation of the State's right to tax alcoholic beverages, such requirement was enforceable. However, we onfy reserve the right to serve civil and criminal processes and it is my opinion that such a reservation cannot be construed to bring these Reservations under the revenue laws of this State.
Therefore, in view of the above, it is my further opinion that a Military or Naval installation which is located on property that has been ceded to the Military or Naval installation which is located on property that has been ceded to the United States by the State of Georgia has the right to buy distilled spirits direct from the distiller without the payment of Georgia tax or warehouse charges.
INTOXICATING. LIQUORS-Alcoholic Beverages Shipments to military installations are in effect not a shipment to Georgia, and while distillers may ship direct to such installations without payment of Georgia excise or warehouse tax, Georgia wholesalers shall affix like shipments made by them export tax stamps.
Honorable Charles D. Redwine
April 15, 1949
State Revenue Commissioner
I am pleas(:d to acknowledge your letter of April 15, 1949 in which you requested an opinion from me relative to whether or not it would be legal for
Georgia liquor wholesalers to import alcoholic beverages to naval and military
installations.
As you know on February 16, 1949 I rendered an opinion in which I held that military and naval installations which were located on property which had
been ceded to the United States could buy alcoholic beverages direct from the
distiller without the payment of the Georgia excise tax or warehouse charges
thereon. You will recall that this opinion was based in the main on a case
handed down by the Supreme Court of the United States, Johnson, et al vs. Yellow Cab Transit Co., 321 U. S. 383.
The Supreme Court in this case has said in effect that military reservations located on property ceded to the United States is similar to an island located within the territorial borders of the State, and that transportation of alcoholic
beverages across Georgia into this island is purely interstate commerce, or in
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other words, it would be similar to a distiller in Illinois shipping alcoholic beverages through Georgia to Florida. Code Section 58-1049 states:
"On liquors exported beyond the limits of this State there shall be a tax of 15 cents per wine gallon."
Therefore, in my opinion since military reservations located on land ceded to the United States are in effect separate entities that it would be legal for Georgia wholesalers to export to them as if they were exporting liquor to Florida or Alabama. I respectfully call your attention to regulation 406, page 36, in the State Rules and Regulations relating to distilled spirits, as revised on June 28, 1948, which says:
"406. The De:partment will refund warehouse charges (except stamping fees) previously collected on the following distilled spirits and refund (subject to a cancellation charge at the rate of twenty-five cents per case) the value of the tax stamps affixed to the containers thereof: (a) on distilled spirits in Georgia, whene:ver the same are shipped or moved, with the Commissioner's approval, to a point outside Georgia, but unless the same are being shipped directly to the producer thereof export tax stamps at the rate of fifteen cents (15c) per gallon shall be affixed to the cases or barrels containing the same and the value: thereof shall not be refunded; and: . . . ."
You will note that this regulation requires that warehouse charges will be refunded and tax stamps cancelled when alcoholic beverages are shipped to a point outside of the State.
Therefore, in view of the above, it is my opinion that it would bit legal for Georgia wholesalers to export to naval and military reservations, alcoholic beverages with payment of fifteen (15c) cents per wine gallon export charge. Also, it is legal for naval and military reservations to buy direct from the distiller if they so desire:.
INTOXICATING LIQUORS-Alcoholic Beverages Payment of retail liquor license by the owner of a store, which he shortly thereafter sold to another, is not recoverable where voluntarily made.
Honorable B. I. Gilbert, Director Alcohol Control Unit
June 22, 1949
I am ple:ased to acknowledge your letter of June 14, 1949, with reference
to the refund of State liquor license fee paid by Mr. Rex Hodges, Statesboro, Georgia.
From the facts outlined in your letter and from careful review of the file in the matter, Mr. Hodges made application for a retail liquor license to the Revenue Department on December 30, 1946, and on January 2, 1947, a license was issued to him, based upon said application.
In the meantime, on January 1, 1947, Mr. Hodges states that he sold his liquor store to one Felix Sutton. Said Sutton made: application for a retail liquor license on January 7, 1947, for the same liquor store, and the license was
issued to him on January 10, 1947. The file discloses that the Commissioner of Revenue was notified by Mr. Hodges that he had sold his store on January 7, 1947, to Sutton.
Code Section 92-8436, paragraph (b), of the 1933 Code of Georgia pro-
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vides under what circ*mstances refunds can be made, and reads in part as follows:
"(b) Proc:edur'e for granting. In any case in which it shall be determined that an erroneous or illegal collection of tax or license has been made by the Commissioner, the taxpayer from whom such tax or license was collected may, at any time within three years after the date of the payment of same to the State Revenue Commissioner, file a claim for refund with the said Commissioner ....."
The above quoted paragraph provides that where a tax or license is collected erroneously or illegally, the Commissioner may make a refund. Certainly, the licensee fee was not collected illegally or erroneously, as an application, together with required fee, was tendered by Mr. Hodges to the department in conformity with the Rules and Regulations of the department and the laws of this State. The department then, considering the application, issued Mr. Hodges a retail liquor license for his store.
Code Section 20-1007 provides that any payments for taxes or other claims made voluntarily cannot be recovered back, and reads as follows:
"20-1007. Voluntary payments; recovery back.-Payments of taxes or Qther 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, unless made under an urgent and immediate necessity therefor, or to release person or property from detention, or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule."
It must be concluded from the facts outlintd above that this was a voluntary payment. Therefore, in view of the two code sections above cited with the facts outlined above, it is my opinion that the claim for refund should be denied.
INTOXICATING LIQUORS-Alcoholic Beverages (Unofficial) 1. Possession of alcoholic beverages in dry counties is limited to one quart. 2. Possession of whiskey in Georgia without Georgia stamp is illegal.
October 25, 1949 Honorable S. C. Steadman
This will acknowledge receipt of your letter of October 20, 1949, with reference to the amount of whiskey that a person is allowed to have in his possession in a dry county and also whether or not you can possess whiskey pur'chased in South Carolina in Georgia without the Georgia tax stamp thereon.
No person may possess more than one quart of alcoholic beverages in a dry county and the Georgia State tax stamp must be on such alcoholic beverages. It is a violation of the law to possess whiskey without the Georgia State tax stamp thereon in the State of Georgia, regardless of whether or not the license tax of another State has been paid.
595
INTOXICATING LIQUORS-Alcoholic Beverages (Unofficial) One convicted of income tax evasion is not prohibited by State law from acting as manager of a retail liquor stor~::.
October 25, 1949 Mr. Samuel J. Gottlieb
This will acknowledge receipt of your letter of October 17, 1949, in which you ask whether or not, under the law, you may accept a position as manager of two retail liquor stores, owned and operated by a local merchant, under the following facts as stated in your letter:
"I was convicted by the Federal Government in the Northern District of Georgia, for IncomE: Tax Evasion. I served six months of a Year and a Day sentence, in the U. S. Federal Correction Inst., Tallahassee, Fla. I am now out on parole.
"Enclosed is a copy of a letter from Mr. John C. Carbo, my Probation Officer, approving my plan, also my employment in the above mentioned capacity."
I find no provision in the law, or the published rules and regulations of the State Revenue Commission~::r pursuant thereto, which would prohibit you from accepting the position as manager of retail liquor stores owned and operated by a local merchant. However, I want to call your attention to Section 58-1028 of the Code of 1933, Annotated Pocket Part, codified from the "Revenue Tax Act to Legalize and Control Alcoholic BevE:rages and Liquors" (Georgia Laws 1937-38, pages 103-124), which provides:
"Municipalities and counties may adopt regulations and determine location. -Nothing in this Chapter shall be construed as preventing any municipality or county from adopting all reasonable rules and regulations as may fall within the police powers of such municipalities or counties to regulate any business provid~::d for in this Chapter. All municipal and county authorities issuing licenses shall within their respective jurisdiction have authority to determine the location of any distillery, wholesale business, or retail business licensed by them."
It is entirely possible that the first sentence of the above quoted section may affect your situation, and I would advise you to check with the local authorities as to whether any rule or regulation has been made which will prohibit your employment.
Inasmuch as the Attorn~::y General cannot, under the law, render official opinions to anyone except the Governor and heads of the various departments of State, this letter must necessarily be personal and unofficial.
596
INTOXICATING LIQUORS-Alcoholic Beverages, Wines, Malt Beverages (Unofficial)
1. In a dry county one may possess malt beverages and domestic wines, but not more than one quart of spirituous, vinous or alcoholic liquor. 2. In dry or wet counties possession of beer, wine or liquor without payment of excise tax is unlawful.
Mr. Lester M. Lewis
May 18, 1949
I am pleased to acknowledge your letter of May lOth in which you ask the following:
How much beer, wine and liquor can one have in his home for his own consumption in a dry county?
Is the tax stamp required to be on the beer, wine and liquor? As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the heads of the various 5tate departments. Therefore, this information is to be considered purely of a personal nature and is not binding on anyone. The possession of malt beverages (beer) and domestic wines is not unlawful. See McKown vs. City of Atlanta. et. al., 184 Ga. 221. However, the possession of non-domestic wines or wines that are imported into the State is illegal in a dry county. The court, in the case of Owen vs. State, 51 S. E. 2d series, 602, held that it is legal to possess domestic wines, but it is illegal to possess other wines. With reference to the possession of liquor in a dry county, I wish to quote to you Cod& Section 58-1077 of the Code of Georgia of 1933 which reads as follows: "58-1077. Possession of more than quart in dry county, .misdemeanor.Any person found in possession or control of more than one quart of spirituous, vinous, or alcoholic liquor, in any county of this State (except such counties in which liquor may be legally sold or transported under the terms of this Chapter) shall be guilty of a misdemeanor and, upon conviction, punishable as in cases of misdemeanors. The fact that such person may have a license or liquor stamps shall be- no defense in such prosecutions, where said liquor is carried into a county to whic.h the terms of this Chapter do not apply, and wherein liquor is not legalized under the terms of this Chapter." It is unlawful in this State to possess beer, wine or liquor in any manner without the excise tax being paid therfoon.
INTOXICATING LIQUORS-Malt Beverages (Unofficial) A person may possess any quantity of beer in a dry county.
Honorable John F. Brannon, Solicitor
March 17, 1949
City Court of Statesboro
I am pleased to acknowledg6 your letter of March 9, 1949, in which you
ask: 1. Can a person possess any quantity of beer in Bulloch County?
The Attorney General is prohibited by law from rendering official opinions
597
to anyone except the Governor and the h~ads of the various State departments. Therefore, this information is to be considered purely of a personal nature and is not binding on anyone.
I can find nothing in the law that prohibits a person from possessing any quantity of malt beverages in this State, provided the excise tax has been paid thereon.
INTOXICATING LIQUORS-Malt Beverages (Unofficial) The op~rator of a cafe may not, without a malt beverage license, give away beer to his customers.
Honorable Napoleon Dyal Sheriff, Appling County
April 19, 1949
I am in receipt of your letter of recent date in which you request informa-
tion as to whether or not a person operating a cafe or other place of business
may give beer away.
You state in your letter that it is your understanding that even though a person does not have a license he can have any quantity in his possession but
cannot deal in it in any way. I believe that you are correct in your statement.
In the case of Meadows v. The State, 121 Ga. 362, the Supreme Court held as follows:
"1. Where a merchant gives away whiskey to his customers, it is a question of fact for the jury whether he does so for the purpose of inducing trade, in violation of the Political Code, 1548. Such a violation is made penal by the Penal Code, 451.
"2. Under the evidence in the county court the jury could fairly have found that the whisky was given away by the accused to his customers to induce trade at his place of business, and the judge of the superior court did not err in refusing, upon certiorari, to set the verdict aside."
I am of the opinion that it was the intent of the Legislature when enacting the various alcoholic beverages acts to prohibit anyone from dealing in these beverages unless such a person first obtained a license. Therefore, I reach the conclusion that the person to whom you have referred in your letter is not authorized to give away beer unless he first obtains a license.
As the Attorney General is prohibited by law from rendering official opinions to persons other than the Governor and heads of the various Departments, the letter must be considered as merely my personal views on this subject.
598
INTOXICATING LIQUORS-Malt Beverages (Unofficial) Malt beverages may not be sold on election day within two miles of any election precinct.
December 13, 1949 Honorable J. Paxson Amis Attorney at Law
This will acknowledge receipt of your letter of December 9, 1949 with reference to the sale of malt beverages on an election day.
Under a recent decision rendered by the Court of Appeals, in the case of Kaminsky vs. The State, 76 Ga. App. 505, and a rule and regulation promulgated by the State Revenue Commissioner pursuant thereto, malt beverages cannot be legally sold on an election day within two miles of any election precinct.
INTOXICATING LIQUORS-Malt Beverages (Unofficial) Counties may not levy excise tax on malt beverages.
December 19, 1949 Honorable W. M. Dallas County Attorney, Upson County
This in in reference to y-<>ur telephone conversation with Mr. Hardeman Blackshear as to whether counties have authority to levy an excise tax on malt beverages.
This office has consistently ruled that cities may levy excise taxes on malt beverages if their charter provides for such a tax, but under the Malt Beverage Law counties which are part of the State government have no such authority.
I hope this answers your question, but if I may be of further assistance to you in this connection, please do not hesitate to call upon me.
Since my official authority is rE:stricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
INTOXICATING LIQUORS-Wines
Tax on domestic wines of higher than 15 o/o alcoholic content may be reduced by executive order until meeting of General Assembly.
March 3, 1949 Honorable Herman E. Talmadge Governor, State of Georgia
Upon your oral request, I have carefully examined the proposed Executive Order attached herE:to and I find that it has the effect of reducing the tax on all domestic wines having an alcoholic content of more than 14 o/o by volume and sold in Georgia from $1.00 per gallon to 25c per gallon.
The present law imposes a tax of $1.00 per gallon on all "foreign and domestic wines whether fortified or not having an alcoholic strength of more than 14 o/o alcohol by volume."
Under Code Section 40-205, you have authority to reduce this tax by ExecutivE~ Order until the meeting of the next General Assembly.
A precedent in this respect was established by your father in reducing in
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part by Executive Order the automobile tag license. I am sure you recollect this precedent.
If you desire more information in r:gard to the proposed Executive Order, please do not hesitate to call on me.
INTOXICATING LIQUORS-Wines A wine dealer in a dry county with a retail wine license may sell only domestic wines and may possess not more than a quart of non-domestic wines.
Honorable Charles D. R:dwine State Revenue Commissioner
June 28, 1949
I am pleased to acknowledge your letter of June 20, 1949, in which you request an official opinion on the following question:
"Can a retail wine dealer, in a county that has rec:ntly voted to prohibit the sale of intoxicating beverages (a dry county) and who has obtained a retail wine license from said county, sell non-domestic wines or possess more than one quart of same?"
Code Sections 58-101 and 58-201 of the Code of Georgia of 1933 provide as follows:
"58-101. Prohibited liquors and beverages, what emb.raced in term.The term 'prohibited liquors and beverages,' used in any law to promote temperance or to suppress the evils of intemperance, shall include the following: (1) Alcohol, alcoholic liquors, spirituous liquors and all mixed liquors, any part of which is spirituous, foreign or domestic spirits, or rectified or distilled spirits; absinthe, whiskey, brandy, rum and gin; (2) vinous liquors and beverages; (3) nothing in this Chapt:r shall apply to fermented beverages made from malt, in whole or in part, or any similar beverages."
"58-201. Unlawful to carry, receive, or possess specified liquors.-It shall be unlawful for any common carrier, corporation, firm or individual to transport, ship or carry, by any means whatsoever, with or without hire, or cause the same to be done, from any point without this State to any point within this State, or from place to place within this State, whether intended for p:rsonal use or otherwise, any spirituous, vinous, malted, fermented or intoxicating liquors, or any of the prohibited liquors or beverages d:fined in section 58-101, or any alcoholic compound or malt or liquor whether intended for beverage purposes or not, but which can be deluted, and when so diluted may be ns:d as a beverage and will produce intoxication. It shall be unlawful for any corporation, firm, or individual to receive from any common carrier, corporation, firm, or individual, or to have, control or possess any of said enumerated liquors or bev:rages whether intended for personal use or otherwise, save as is hereinafter excepted."
Generally, the possession and sale of intoxicating liquors and beverages is prohibited in this State, as will be noted from reading the above quoted code sections. The exceptions to the general prohibition law are the Wine Acts of 1935 and 1937 and the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors." (Ga. Laws 1937-38, page 103).
The Wine Act of 1935 legaliz:s domestic wines, and the possession of any
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quantity of domestic wines is not unlawful, provided the lawful tax has been paid thereon. Such domestic wines may be sold in any county of this State when the governing authorities of a municipality or county, as the case may be, issues a license for such sales as r~::quired by law, provided, however, if a county has voted to prohibit the sale of domestic wines, as provided by Code Section 58-807 of the Code of Georgia of 1933, no sale of domestic wine will be permitted in such county.
The Revenue Tax Act to control alcoholic beverages and liquors legalizes alcoholic beverages and liquors in counties that have voted to legalize and control such alcoholic liquors and beverages, and the possession of non-domestic wines in such counties is lawful, so long as the excise tax has been paid thereon. Where, however, there has not been an election as required by law for the sale of alcoholic beverages, and in those counties that have voted against the control and taxing of alcoholic beverages, the possession of non-domestic wines is unlawful, with the exception that a person may possess, for use and not for sale, not more than one quart of alcoholic beverages, as allowed under the provisions of Code Se.ction 58-1073.
The Georgia Court of Appeals in: Owen vs. The State, 51 S. E. 2d 602, held that vinous liquors in the form of wine not domestic which are intoxicating are one of the prohibited liquors under the gentral prohibition law.
Therefore, where a county has voted to prohibit the sale of alcoholic beverages and liquors, such county comes under the provisions of the general prohibition law, and the sale of non-domestic wines in such county is unlawful and the governing authorities are without authority to issue a permit or license for the sale thereof.
LUNACY PROCEEDINGS-Department of Public Welfare The Department may receive at the State Hospital a person committed by the ordinary under a commitment statute, or may receive a person who is a lunatic, etc. and is also a pauper, or a person who is a lunatic, etc. and whose estate amounts to less than $3,000, without commitment.
Hon. J. M. Forrester State Department of Public Welfare
March 22, 1949
I am pleased to acknowledge your letter of March 17, 1949 in which you ask my opinion on the following questions:
(1) The legality of the commitment of the person named in your letter.
(2) Can a guardian, appointed under Code Section 49-604, confine his ward in the Milledgeville State Hospital without a specific judgment by the Court of Ordinary committing the ward to hospital?
Two methods of commitment and one method of admission to the Mil-
ledgeville State Hospital are provided by statute. One is under Section 49-604
of the 1933 Annotated Code, and the other under Section 49-612. Admission
Section 35-204. The Supreme Court of Georgia, in the case of Reagan vs. P,owdl, 125 Ga.
90, in distinguishing these two Code Sections, said in regard to Section 49-612:
"When an insane person has no guardian, or where the guardian of an insane person fails or refuses, on notice, to confine his ward, any person
601
may make oath that the insane person, for public safety or other good and sufficient reason, should not longer be left at large, and the ordinary is thereupon authorized to issue a warrant as in criminal casE>s for the arrest of such insane person and to have him brought before him (the ordinary) on a specified day. Upon an investigation of the facts, the ordinary may commit the insane person to the asylum, and, if necessary, cause him to be temporarily committed to jail until he can be removed to the asylum. This summary proceeding, which is authorized by the Civil Code, 2582 (49-612), may be instituted before and conducted by the judge of the superior court, whenever the ordinary is absent from the county, or when he is unable to act, for any cause. Thus, so far as regards persons who may be violently or helplessly insane, a speedy mode of procedure is pointed out for placing them beyond the power of doing injury, either to the public or to themselves."
The Court further said, in regard to Section 49-604: "An altogE>ther different procedure is pointed out by section 2573 ( 49-604), to be observed whenever a person believed to be mentally unbalanced, though neither violent nor unable to look after his own immediate safety, is without a guardian. A formal petition, under oath and alleging either that he is 'liable to have a guardian appointed' or that he is 'subject to be committed' to the' State Sanitarium, must be duly presented to the ordinary, who, 'upon proof that ten days notice of such application has been given to the three nearE>st adult relatives of such person, or that there is no such relative within this State', is authorized to issue a commission directed to a specified numbE>r of disinterested and discreet persons, including a physician, who, after being duly sworn, shall 'examine by inspection' the person whose sanity is questioned and hE>ar testimony, if necessary, as to his mental condition, and who shall 'make return of such examination and inquiry' to the ordinary, therein specifying whethE>r or not it is proper to commit him to the asylum or appoint for him a guardian. Upon this return the ordinary may enter up an appropriate judgment, but it is by no means conclusive, either ).lpon the party applying for the commission or upon the person allE>ged to be insane. Either may appeal to a JUry in the superior court, the latter being allowed to do so in his own name, if capable, or through any friend or relative. Civil Code, 2575 (49-606'). If a guardian be appointed by the ordinary, he 'shall act as such pending the litigation.' Ibid. In that E>vent, not only will the guardian be authorized to take charge of the property of his ward until the issue is settled in the superior court, but the guardian is E>xpressly authorized to confine his ward or place him in the asylum, if such a course is necessary either for his own protection or for the safety of others. Ibid. 2581 (49-611).'' Section 49-605 of the Code provides: "Upon such return finding the person to be as alleged in the petition, or within either of said classes, the ordinary shall appoint a guardian for him or commit him to the Milledgeville State Hospital." I have inserted in the above Supreme Court decision, for convenient referE>nce, the present Code Section numbers. The judgment of the Court of Ordinary of McDuffie County, as set out in your letter, after naming the person, states: " .... it is hereby ordered that she be committed to the State Hospital at Milledgeville until she again be restored to her right reason and sound mind." In answer to your first question, it is my opinion that when a Court of
602
Ordinary of this State, acting under either of the above sections, renders its judgment committing a person to the Milledgeville State Hospital, then it would be your duty to receive such person upon his or her delivery to your institution accompanied by a properly executed copy of such judgment.
Your second question addresses itself to the method of admission provided under the following Code Sections:
&ection 35-202 of the 1933 Code provides: "Lunatics, epileptics, idiots, and demented inebriates may become inmates of the .hospital and shall be admitted to, and discharged from, the Hospital under such rules and regulations as the Board of Control shall prescribe." Section 35-203 provides: "The Board of Control shall prescribe rules and regulations for the purposes aforesaid, and from time to time, as experience may demonstrate to be necessary, alter and change the same, which rules and regulations, when thus established, shall be ex~::cuted and carried into effect by the superintendent and other officers of said Hospital." Section 35-204 provides: "The Hospital shall be free to all resident citizens, who may be lunatics, idiots, epileptics or demented inebriates, and who are paupers. These, when admitted, shall receive free the same food, raiment and medical and other attention as shall be provided for inmates generally; and all resident citizens of the above description whose estate shall not exceed the sum of $3,000 or be sufficient to provide for them may be admitted upon the payment of such reasonable sum for board and keep as may be prescribed by the Board of Control of Eleemosynary Institutions: Provided, however, that no paralytics, epileptics, imbeciles, idiots, drug or alcoholic addicts, or persons suffering from tubercular, venereal or other contagious diseases, whether paupers or not, who are harmless and inoffensive in spirit, and who, if unconfined, would reasonably involve no danger to the life or limb of those with whom they would be associated, shall be committed or admitted to said Hospital: Provided further, that the family or friends of any inmate may furnish extra or additional food or other comforts, at their own expense, under such rules and regulations as said Board may prescribe: Provided further, that any funds belonging to any inmate of said Hospital, where there has been no guardian appointed for such inmate, shall be turned over to the Board of Control and used toward the board and clothing and other expense of such inmate, and in the event any such inmate shall be discharged as being cured, any balance remaining in the hands of said Board shall be turned over to such inmate." In regard to this Section, see my opinion rendered th.o Director of the State Board of Public Welfare, dated February 13, 1947, which points out that lunatics whose estates do not exceed $3,000 may be admitted to the Milledgeville State Hospital on a paid status without commitment by a Court of Ordinary. I am attaching hereto a copy of this opinion. Section 35-205 provides: "As soon as regulations shall have been made by th.o Board for the reception of patients, it shall be the duty of the Board to cause copies of said rules and regulations to be furnished to the different ordinaries." Under the above quoted code sections a method is provided for certain named classes of persons to be received by the Milledgeville State Hospital under such rules and regulations as the State Board of Social Security may
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adopt, the State Board of Social Security having assumed the duties of the Board of Control by legislative enactment. This method of admission is entirely separate and distinct from the two methods of co,mmitment to the hospital by the Court of Ordinary of the various counties.
Section 49-611 provides: "Guardians of insane persons are authorized to confine them, or to place them in the Milledgeville State Hospital, if such a course shall be necessary either for their own protection or the safety of others; and a guardian wilfully failing to take such precaution with his ward shall be responsible for injuries inflicted on others by such ward." In answer to your second question, it is my opinion that a duly appointed guardian of an insane person may place such insane person in the Milledgeville Stat Hospital under either Sec. 49-604 by judgment of commitment, or by the method of admission provided by Code Section 49-611, subject to such rules and regulations as may be adopted by the State Board of Social Security from time to time on admissions to the Milledgeville State Hospital.
LUNACY PROCEEDINGS-Residence A person need not be a citizen of a county for any specified time
before lunacy proceedings can be instituted.
Honorable W. K. Barrett, Director State Department of Veterans Service
Attention: Mr. Tom Austin
June 17, 1949
I am pleased to acknowledge your letter of June 13, 1949 in which you requested information relative to whether a person must be a citizen of a county for six months before he can be committed by that county to the Asylum.
Code Section 49-612 states the following: "Proceedings by third persons looking to confinement of ward.-When there shall be no guardian for an insane person, or the guardian, on notice, shall refuse or fail to confine his ward, and any person shall make oath that such insane person, for public safety or other good and sufficient reason, should not longer be left at large, the ordinary, or in his absence from the county,. or when he is unable to act for any cause, the judge of the superior court before whom said oath shall be made, shall issue a warrant as in criminal cases; for the arrest of such insane person, to bring him before him on a day specified; and said ordinary, or in his absence from the county, or when he is unable to act for any cause, the judge of the superior court, on an investigation of the facts, may commit such insane person to the Milledgeville State Hospital, and, if necessary, cause him to be temporarily committed to jail until he can be removed to the Hospital, and the expenses of such confinement and the proceedings shall be paid out of the estate of such insane person, if any, and if none, out of the county funds. The fees of the ordinaries of the several counties for making out commissions of lunacy and all other services connected therewith shall be $5; and the fees of sheriffs and bailiffs, for summoning juries and other services connected with cases of lunacy, shall be $3."
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In view of the above Code Section, it is my opinion that it is not necessary for a person to be in a county for any specified period of time before commitment proceedings can take place.
MUNICIPAL CORPORATIONS-Charter Provisions Where the charter of a town permits it to prohibit livestock running loose, such regulation is within the power of the town.
June 2, 1949 Honorable- S. S. Davis, Mayor City of Nicholls
This is to comply with your request of May 31, 1949, making inquiry as to the legality of an ordinance of the City of Nicholls making it unlawful for livestock to run at large upon the streets. You say that at this time you are not attempting to enforce the ordinance because of Section 62-509 of the 1933 Code of Georgia, Ann.
In the case of Curtis vs. Town of Helena et al, 171 Ga. 256, it was held that Code Section 62-509 has no application to incorporated towns.
In Section 29 of the Act of the Legislature incorporating the City of Helena, authority was confE:rred upon the Board of Aldermen to maintain public parks, roads, streets and alleys, to provent injury and annoyance to the public or to individuals from anything dangerous, offensive, unwholesome, to prE-vent hogs, horses, cattle, sheep, dogs and other animals, and all fowls from going at large in said city.
In the case of Curtis vs. Town of He~ena, supra, the Court held that the above la":' was not repugnant to the Constitution and laws of the United States or of this State.
An Act to provide and establish a new charter for the Town of Nichols in the County of Coffee, provides:
"Sec. 30. Be it further enacted, That the Mayor and Aldermen shall have full power to protect all places of worship; to provide cemeteries and places for the burial of the dead, whether within or without the city limits, and to regulate interments thertin, and to provide by ordinance for the protection and care of such cemeteries, and to fix penalties for the violation of the provision of such ordinances; to regulate the sale of ice and milk, and to provide for the inspection of the same; to regulate or prohibit the running at large within the limits of said city of horses, mul0s, cows, goats, sheep, cattle, hogs or other animals, and to take up and impound the same, and to regulate and control the keeping of dogs within the city, and to provide for a tax on dogs and for taking up and impounding the same."
So, it would appear that, under your charter, you would have the right, power and authority to prohibit by ordinance the running of livestock at large upon your streets.
This is a matter that should be discussed with your City Attorney. I trust, however, that the above citations may be of some benefit to you.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
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NOTARIES PUBLIC-Applica.tions (Unofficial) Clerk of Superior Court determines whether, and how many, signatures are requirtd to Citizens Certificate.
March 23, 1949 Honorable Dan J. O'Connor, Clerk Superior and City Courts Richmond County
This will acknowledge receipt of the "Application for Notary Public" form which you sent me in conformity with our telephone conversation of a few days ago.
The specific question which you dtsired to have answered was, "How many citizens must sign the Citizens Certificate which is on the form?"
The form which was printed by Foote & Davies, Inc., provides five lines for signatures. There is no provision either in the old law or the new law regarding notaries public which requires this Citizens Certificate at all. However, it has been my experience that it is more or less the custom of the various counties to have this Citizens Certificate on their forms merely as a convenience to them and it is used somewhat in the manner of a character reference.
I know that DeKalb County only requires two signatures on their forms and I am of the opinion that it is entirely within your discretion as to just how many signatures you require on the Citizens Certificate.
As the Attorney General is prohibited by law from rendering official opinions to persons othtr than the Governor and heads of the various Departments, this letter must be considered as merely my personal views on this subject.
NOTARIES PUBLIC-Marriage Ceremony A commercial notary may not perform a marriage ceremony.
)
August 16, 1949 Honorable A. G. Smith
This will acknowledge receipt of your letter of August 8, 1949 in which you ask if a fully qualified Notary Public has the authority to perform a marriage ceremony.
Under the law I am prohibited from giving opinions to anyone except the Governor and to heads of the various Departments of the State. However, I am pleased to give you my personal views which may be of some help to you.
A commercial Notary Public does not have the authority to perform a marriage ceremony.
A Notary Public ex-officio Justice of the Peace appointed under the provisions of Stction 24-501 of the Code by a judge of the Superior Court upon the recommendation of the Grand Jury of the County and commissioned by the Governor has the same power and authority as that vested, in a Justice of the Peace to perform marriage ceremonies.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and p>rsonal.
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NOTARIES PUBLIC-Seal Seal is not required on notary's attestation of deeds.
March 9, 1949
Honorable Ben W. Fortson, Jr. Secretary of State
This letter is in reply to your oral request for an unofficial opinion as to whether or not under the 1949 Notary Public Act, notaries public have to affix their seal when attesting deeds.
Under an Act approved March 27, 1947 (Ga. L. 1947, p. 1108), the provision that no seal was required to attestation of deeds was retained from the old law. This provision is found in Code Section 71-107 of the 1947 Pocket Part of the Annotated Code. This Code Section reads as follows:
"For the authentication of their notarial acts each notary must provide a seal of office, which shall have for its impression his name; the words, 'Notary Public'; the name of the State and the county of his residence. A scrawl shall not be a sufficient notarial seal. No seal is required to his attestation of deeds. He must keep a fair register of all his notarial acts signed by him, together with the date of each transaction."
The Act which was passed in the 1949 Session of the Legislature referred to Section 71-107 in one respect. The caption of said Act contained the following words:
"to amend Section 71-107, the same relating to Notarial Seal and Register, by adding thereto after the word 'residence' in the 6th line, the following: 'or shall have for its impression his name and the words, "notary public, Georgia, State at Large"'."
Section 3 of said Act reads as follows:
"That Section 71-107 of said Act is amended by adding after the word 'resident' as appearing in line 6 the:t;eof the following: ', or shall have for its impression his name and the words "notary public, Georgia, State at Large."', :so that said section as amended shall read as follows: 'Section 71-107. Notarial :Seal and Register; Scrawl: Attestation of Deeds. For the authentication of their notarial acts each notary must provide a seal of office, which shall have for its impression his name, the words, "notary Public;" the name of the State and the county of his residence, or shall have for its impression his name and the words "notary public, Georgia, State at Large." A scrawl shall not be a ~sufficient notary seal.'"
You will notice that in quoting the section as it should read after it was amended, the last two sentences of said Section were left out. Those two sentences read as follows:
"No seal is required to his attestation of deeds. He must keep a fair register of all his notarial acts signed by him, together with the date of each transaction."
The caption of said Act says nothing whatsoever concerning the omission of those two sentences nor does Section 3 of the Act contain anything with r10gard to the omission of the two sentences. On the contrary, both the caption and Section 3 specifically state as to how Section 71-107 should be amended and the only time that we have any inkling that the two sentences are to be omitted is in the quotation as to how the section would read when amended,
607
and then there is no specific mention of the two sentences being omitted; they are simply left out.
The case of Abernathy vs. Mitchell, 113 Ga. 127 seems to be directly in point with the question involved. That particular case concerned an Act of 1897. In that Act the Legislature provided in the caption that they mere to amend Section 4465 of the Civil Code by striking the word "and" and inserting in lieu thereof the word "or". This was the only mention of any amendment to the Section. In the body of the Act it was provided!. that the code secti!on would be amended by striking the word "and" and inserting in lieu thereof the word "or". This was the only mention of an amendment to that section in the body of the Act. However, when the section was quoted as it should read when amended, a certain phrase was omitted. This situation is exactly in point with the situation in which we find ourselves now.
In that case the Supreme Court held that "No intimation is contained in the title of the act that the legislaure intended to make any change with reference to the courts affected by the code section which it proposed to amend". Also, "There is nothing in the act now under review to indicate that there was any intention on the part of the lawmakers to effect any change in the statute sought to be amended, so far as concerned the courts to be affected thereby." For the purpose of clarification, we might say that the phrase which was omitted dealt with the courts affected by that code section.
The Court further held "The body of the act adhered closely to the purposes mentioned in the title, and the omission, in copying the act as amended, of the words 'or proceeding in the court of ordinary' bears every appearance of having been due to oversight."
The Court then went on to say, "We are therefore constrained to hold that the amendatory act did not have the effect of striking the words quoted from the original act, and that the act as amended applies to1 'any suit at law or proceeding in the court of ordinary' ".
This leads us to the conclusion that the Act of 1949 does not have :the ~ffect of striking or repealing from the 1947 law the last two sentences that were omitted from Section 71-107.
The point has been raised that the two sentences have been repealed by implication. Numerous decisions may be found which show that the Courts of this State do not favor repeal by implication. One of the latest of these decisions is the case of Morris vs. City Council of< Augusta, 201 Ga. 660. In that case the Court quoted numerous other decisions and used this language: "Repeals by implication are not favored and never occur except where the later act is clearly and indubitably contradictory and contrary to the former act, and the repugnance is such that the two can not be reconciled."
It is my opinion that the provision that a seal of a notary is not required to his attestation of deeds is still of full force and effect.
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PARDONS AND PAROLES-Arrest of parolees The State Board may not issue warrant for arrest of parolee the recommendation for whose release was made by a member who was possibly a relative, the authority to issue warrant being in the Solicitor General.
January 11, 1949
Hon. Edward B. Everett, Chairman State Board of Pardons and Paroles
I am pleased to acknowledge your letter of January 5th, together with a
copy of your letter of December 9th addressed to Ron. Paul Webb, Solicitor
General of the Atlanta Judicial Circuit, in reference to Edwin H. Byars. You request that I review your letter of December 9th to Mr. Webb and
advise whether or not your position as set forth therein is legally correct. Your letter states the following:
"Hon. Paul Webb, etc. "This will acknowledge receipt of your petition requesting the State Board
of Pardons and Paroles to issue a warrant for the arrest of the above named for the reason that Parole Order granted on November 12, 1948, is null and
void. "On November 12, 1948, Mr. Grover C. Byars and Mrs. Helen Williams
Coxon were legally constituted members of the State Board of Pardons and Paroles, and under the authority vested in them as members of the State Board
of Pardons and Paroles they had authority to issue' the said Parole Order. "There is nothing in our file which indicates that Mr. Grover C. Byars is
related to the said Edwin H. Byars, in accordance with your contention. We
presume that the parole issued to Mr. Edwin H. Byars is legal and valid. If,
from your investigation and findings, the former member of the Pardon and
Parole Board, Mr. Grover C. Byars, is related as contended by you and as a
result Edwin H. Byars is illegally at liberty you, as Solicitor General for Fulton
County, have the authority to cause his arrest and return him to prison. It
will then be a matter for the courts to decide whether or not Edwin H. B'yars
was legally released, in accordance with the laws of this State. "We appreciate your interest, and wish to assure you that if and when the
courts should determine the legal status in this case the present Pardon and
Parole Board will be glad to comply with its order." I am of the opinion that your position taken in the above letter is in ac-
cordance with law. The only arresting powers of the Board of Pardons and Paroles are found
in Section 77-518 of the laws creating this Board. This statute provides in part
as follows:
.
"If any member of the Board shall have reasonable ground to believe that
any parolee has lapsed into criminal ways, or has violated the terms and condi-
tions of his parole in a material respect, such member may issue a warrant for
the arrest of such parolee'. .... Any parole or probation supervisor, when he has reasonable ground to believe that a parolee has violated the terms or con-
ditions of his parole in a material respect, shall notify the Board or some member thereof; and proceedings shall thereupon be had as provided herein." (Acts
1943, pp. 185, 192). Since there is no question involved here relating to an alleged violation
of the terms and conditions of a parole, and since the' Board has already taker.
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action based upon the evidence presented, I am of the opm10n that the Board of Pardons and Paroles is without authority in its official capacity as such to cause an arrest to be made of the above named party.
If this party has been illegally released by the Board of Pardons and Paroles, there is appropriate legal procedure to test this issue and to cause said person to be remanded to prison.
PARDONS AND PAROLES-Eligi,bility for parole A prisoner is eligible for parole upon completion of one-third of mimmum sentence.
l\Irs. E. L. Gillion
May 2, 1949
This will acknowledge receipt of your letter of recent date making inquiry as to maximum and minimum sentences.
Your question is as follows: How much time will a prisoner be required
to serve in the State of Georgia with a maximum of 15 years and a minimum
of - - - . You do not state what the minimum sentence is.
A person convicted of a felony will be eligible for parole consideration upon completion of service of one-third of the minimum. For instance: if a person receives a sentence of 6 years minimum and a 15 year maximum, he would be eligible for parole after having served one-third of 6 years which, of course, would be 2 years. Should a prisoner receive a sentence of a minimum
of 15 years and a maximum of 15 years, he would be eligible for parole after having served one-third of 15 years, or 5 years.
You did not give the name of the prisoner in your letter. If you are interested in someone now serving a prison sentence in Georgia, you may write a letter to State Board of Pardon and Paroles, State Capitol, Atlanta, Georgia, and they will be glad to give you the status o:fi' any prisoner in Georgia, as to when he will be eligible for parole or any other matter concerning his confine-
ment. Under the Constitution and laws of this State, the Attorney General is
prohibited from rendering official opinions to anyone other than the Governor
and heads of the various departments of State upon matters pertaining to the interests of the State. However, it is a pleasure for me to outline the provisions of the law as a matter of information only.
PARDONS AND PAROLES-Probation 1. A probation conditioned upon service of sentence in another case is ineffective where a new trial was granted in such other case. 2. A sentence shall be computed from the day it was imposed.
November 23, 1949 Honorable J. B. Hatchett, Asst. Director State Board of Corrections
In Re: L. W. Wiggins alias Douglas Wiggins, In the Superior Court of Chatham County, Georgia.
In your letter of November 22, 1949, the last paragraph is as follows:
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"It is requested that you advise us whether or not we have any legal authority to take custody of the above subject for service of the sentence in case no. 10,705 and if so, how this subjE:ct's time is to be computed; whether from date of May 31, 1949, which was date of the imposition of the sentence or from November 22, 1949, which is the date that the sentence was receivE:d in this office."
The SE:ntence in the above case reads as follows: "WHEREUPON, It is considered, ordered and adjudged by the Court that said offense be reduced to a misdemeanor and the said defendant: L. W. Wiggins alias Douglas Wiggins for the space of twelve (12) months be put to work in the Public Work Camp of Chatham County, on the public works, or such other works as the State Director of Corrections of Georgia may direct. Provided however said sentence to be probated after the service of Twelve (12) months imposed this day under Indictment No. 10,704." You will note in case no. 10,705 thE: judge sentenced the defendant to twelve months imprisonment period. He then provided that said sentence was to be probated after the service of twelve months imposed this day under lndictment No. 10,704. You will notice that the probation of sentence in case no. 10,705 was conditioned upon th:' defendant's serving the sentence in case no. 10,704, and a new trial having been granted in case no. 10,704 brought about a condition in which the probation of sentence in sentence no. 10,705 could never exist. I am, therefore, of the opinion that the probationary part of this sE:ntence in case no. 10,705 is of no effect. I am, therefore, of the opinion that the Board of Corrections would be authorized to take custody of the prisoner to serve out the remainder of his sentence which was imposed in case no. 10,705. In answE:r to your question as to how this subject's time is to be computed, it is my opinion that his sentence should be computed from the 31st day of May, 1949, the day that the sentence was imposed by the judge presiding in said case.
PARDONS AND PAROLES-Revocation of Conditional Pardons 1. A governor may not revoke conditional pardons granted by a former governor. 2. A condition attaching to a pardon does not extend beyond the end of the maximum term.
May 20, 1949 Hon. Edward B. Everett, Chairman State Board of Pardons and Paroles
In Re: Clyde Leathers This is to reply to your request of May 19, 1949, inl which you submit the following questions for an opinion: Question I. Is the Governor vested with the authority to revoke conditional pardons previously issued by former Governors? Answer. No. In my opinion, the 1945 Constitution of GE:orgia placed this power in the State Board of Pardons and Paroles. Question 2. Does the Governor have the authority to terminate conditional pardons previously issued by former Governors?
611
Answer. No. In my opm10n, whatever power or authority thE! Governor had in such matters prior to the creation of the State Board of Pardons and Paroles was transferred to the State Pardon and Parole Board under the new Constitution of 1945.
Question 3. Whon the prisoner's maximum term is ten years and he received a conditional pardon, subject to being revoked at the will and discretion of the Governor, does that conditional pardon terminate at the end of the maximum sentence, or does it continue in effect indefinitely?
Answer. It is my opinion that should a prisoner receive a maximum sentence of ten years and during the ten years he should receive a conditional pardon, and should hB comply with the conditions of his pardon, his sentence would terminate at the expiration of the maximum sentence, and the conditional pardon would terminate and he would not be required to serve under the conditional pardon indefinitely.
PARDON AND PAROLES-State Board The State Board of Pardons and Paroles has responsibility for release of prisoner at expiration of minimum sentonce.
September 28, 1949 Honorable J. B. Hatchett Assistant Director State Board of Corrections
This is in reply to your letter of September 15, 1949. The first sentence of your letter statos as follows:
"At the request of the State Board of Corrections, I am asking that you render the State Board of Corrections an opinion as to whose responsibility it is to release a prisoner at the expiration of his minimum sentence."
It is my opinion that neither the State Board of Corroctions nor the Director of Corrections has any jurisdiction over matters relating to probation, pardon, and parole. Such jurisdiction is conferred upon the State Board of Pardons and Paroles by an Act of the regular session of 1943, codified as Chapter 77-5. See the editorial note at the beginning of that Chapter.
Section 77-511 deals with the power of the Pardon and Parole Board to grant reprieves, pardons and paroles, and among other things this section pro. vides as follows:
"... In the cases which the Board has power to consider, such Board shall bt< charged with the duty of determining what prisoners serving sentences in the jails and prisons and public work camps of this State may be released on pardon or parole, and affixing the time and conditions thereof...."
So, it is my opinion that the Board of Corrections has no power to release a prisoner until he has served his maximum sentence. If the prisoner is to be releastd any time prior to serving his maximum sentence, that duty is one for the Pardon and Parole Board.
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PARDONS AND PAROLES-State Board The term at which a prisoner was sentenced having expired and the jurlg(> having no further jurisdiction to place him on probation, the Board may not delegate such authority to the judge.
November 28, 1949 Honorable Ed E,verett, Chairman Board of Pardons and Paroles
In your communication of recent date you set out the following order: "State of Georgia vs. Randolph Herrington Emanuel superior Court, October Term, 1949 Forgery
In Re: Probation "The abov6 named was originally sentenced to serve 12 months (6 months suspended) in the Superior Court of Emanuel County, Middle Circuit, on October 17, 1949, for Forgery. "On November 1, 1949, Honorable R. H. Humphrey, Judge of the Superior Court of Emanuel County, Middle Circuit, certified as follows: "Since the sentence a new situation has been presented whereby I now think that the entire sentence should be served on probation instead of actual service, provided restitution be made of the amount d&frauded.' "It appears that restitution was made on November 8, 1949, and that the
court does not have the authority to correct the sentencE: as the term at which the defendant was sentenced has expired.
"NOW, in an effort to cooperate with the Court, prevent a miscarriage of justice, and make the sentence the true intention1 of the trial court, it is
"HEREBY ORDERED that the said defendant, Randolph Herrington, be released from prison forthwith and that the said prisoner serve the remainder of the 12 months sentence on probation under the jurisdiction and supervision of the Superior Court of Emanuel County, subject to being nwoked at the
will and discretion of the trial JUdge. "It is directed that copies of this Order be filed with the State Board of
Corrections of the State of Georgia, the Clerk of Emanuel County Superior Court, and the said prisoner, Randolph Herrington.
"GIVEN UNDER THE HAND AND SEAL of the State Board of Pardons
and Paroles, this the
day of November, 1949.
STATE BOARD OF PARDONS AND PAROLES
Chairman
Member
Member You then ask if the Pardon and Parole Board has the authority to issue
such an order. It is my opinion that the Pardon and Parole Board has authority to re-
lease any prisoner at any time before his term expires and that the prisoner may be allowed to serve on probation for the remainder of his term subject to rules and regulations fixed by the Pardon and Parole Board.
However, in the present case, I doubt if you have power to confer upon
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the Judge of the Superior Court the power to revoke the probation. Said power and discretion rest now solely in the Board of Pardons and Paroles.
Since the term of the Court has passed at which the prisoner was sentenced, it is my opinion that the Judge has no further discretion in thf: matter and I doubt if your Board has authority to give him such discretion, in revoking the probation.
PARENT AND CHILD-Adoption 1. In petition for adoption names and addresses of parents may be omitted only if both parents are deceased, or if their names are unknown. 2. It is not mandatory, but is desirable, that such information be containf:d in report to thf: Department of Public Welfare. 3. Name of child at birth, age and residence should be given in petition, or if unknown, this should be stated.
Honorable J. M. Forrester, Director State Department of Public Wf:lfare
April 25, 1949
I have your letter of Apri 15, 1949, in which you request a review of an opinion on two questions rendered on July 23, 1948, by our office, and our opinion on a third question pertaining to the same subject. The three questions
are as follows: 1. When persons petition for the adoption of children under the provisions
of Title 74, Chapter 4 of the Code, is it necE>ssary for the petition to include the names and addresses of the natural parents of the child to be adopted? If not, under what circ*mstances may this information be omitted?
2. In the report required of the Department of Public Welfare, is it necessary that the names and addresses of the natural parE:nts of the child to be adopted be stated?
3. When persons petition for adoption of children under provisions of Title 74, Chapter 4 of the Code, is it necessary for the petition to include the
name at birth of the children to be adoptf:d? If not, under what circ*mstances may this information be omitted?
As for the first question, I am in accord with our answer of July 23, 1948, which was as follows:
"In answer to question 1, I call your attention to Georgia Code Annotated, Section 74-407, which provides that the petition of the persons seeking to adopt a child 'shall set forth . . . whE>ther the child has one or both parents living, apd in case one or both are alike, their names and places of residtmce, unless
unknown.' "This Section affirmatively requires that the names and places of resi-
dence of the parents be included in the petition. However, the Section states two exceptions to this general requirement. The names and addresses of the natural parE>nts need not be stated in the following situations:
a. When both of the natural parents are deceased. b. When the names and places of residence are unknown to the petitioners." As to the second question, while it is true that there is no specific requirement in Code Section 74-410 or 74-411 that the names of the parents be set
614
out in the report to the court by your department, I am of the opinion that this information should generally be disclosed to the court.
You will note that Section 74-410 requires your department (or agency appointed by your department) to verify the allegations in the petition for adoption, to make a complete and thorough investigation of the entire matter, and to report its findings and recommE:ndations to the court in writing. As Section 74-407 requires the petitioners to give the names and addresses of the child's parents, if such parents are living and known, and as your department is charged with verifying the allegations in the petition, there is strong implication that the names of the parents would certainly be a necessary part of the report if your department had ascertained their names. I think that the word "verify" as used in Code SE:ction 74-410, means to prove to be true, to confirm, substantiate, check or test the accuracy of the various allegations of the petition, and means more than a mere certificate by the Welfare Dtpartment that the petitioner, insofar as the petitioner knows, has pleaded the truth. I do not believe, for E:xample, that your department could properly verify or substantiate an allegation in a petition for adoption which was to the effect that the names of the parents were not known, when, as a matter of fact, your department knew the names of the parents.
This report by your department is made for the benefit of the court. It does not become a part of the record of the case, but remains confidential, and may be inspected only under prescribed conditions. And by Paragraph 7 of Section 74-411, your report is to include, among other things, any information that might be disclosed by the investigation that would be of any value or interest to the court in passing upon the case. We can easily imagine a number of instances when the names of the parents would be of value and interest to the court.
I think, furthtr, that the Code by charging your department to make a complete and thorough investigation of the entire matter and to report, in writing, to the court, imposes upon your department the duty to include in its confidential report the names of the parents, if known and living. Certainly it is the intent of the law that the names of the parents, if living and if known, be disclosed to the court, for this is shown by Section 74-407. We find, furthermore, that by Stction 74-403, no adoption shall be permitted except with the written consent of the living parents of the child. Section 74-404 enumerates certain conditions under which this written consent of the parents may be dispensed with. Thus, there would seem to be a strong implication again that in any case when the names of the parents have been ascertained by your department and their consent is essential to the adoption, that your report disclose to the court the names and addresses of the parents.
In considering the foregoing question in view of the statutes, I have been guided by the case of Grlend,inning v. McComas, 188 Ga. 345, in which the Court held that while it may be true that in some respects the statute as to adoption may be leniently construed, yet, as applied to severance forever of the parental relation, it must be construed strictly against the applicant and favorably to the parent.
I think you will agree with me that by insisting on your report to the Court including the names of the parents of the child to be adopted, if living and if known, that we are construing the statutes strictly against the applicant and favorably to the parent.
615
In answer to your third question, it is my opinion that it is necessary for the petition to set forth the name, age, and place of residence of the child. This is exactly what Section 74-407 requires. The name of the child would logically be the name of the child at the time the petition was filed, which would not necessarily be the name of the child at birth, though this would ordinarily be the case. For example, a child that has once been adopted could conceivably be adopted a second time. In that event the name of the child in the petition would be the name the child had acquired by reason of his first adoption. If the child's name is not known and the names of the parents are not known, then those facts should be stated in the petition and, of course, the petitioner could not name the child.
As for your affidavit, copy of which you enclose, it seems to me to be sufficient for its purposes. If, however, its purpose is to conceal the name of the parents of the said child and if your report to the Court, independently of the enclosed affidavit, does not disclose the names of the parents, if known and if living, then I am of the opinion that the enclosed affidavit would not be adequate. On the other hand, if you do go ahead in your confidential report and giVf::' the court the names of the parents, then I see no reason why you may not use the affidavit in its present form.
PARENT AND CHILD-Adoption A minor mother may give binding consent to the adoption of her illegitimate child.
Honorable Alan Kemper, Dirc,ctor
August 25, 1949
State Department of Public Welfare
This morning a member of your Department asked my advice on the following matter.
It seems that a minor girl, 17 years of age, is the mother of an illegitimate
child, and this minor mother has consented 'to the adoption of he:t: illegitimate child and has plactd the child with your Department for adoption. The main question is as follows: Is the consent of the minor mother to the adoption of her illegitimate child a binding, adequate consent or is it subject to revocation upon the minor mother reaching her majority, and next, if such consent is not binding and is subject to revocation, are there any legal steps which can be
taken now which could prevent such revocation upon the mother rtaching her majority'?
First, I want to state that I find no statutes nor cases which are concerned with the particular point in qutstion. In regard to matters of adoption, generally, I can find no discussion concerning the rights of parents who are themselves minors as distinguished from parents who have reached the age of majority, nor can I find any discussion which distinguishes between the rights of
minor mothers or parents of illegitimate children and the rights of adult mothers or parents of illtgitimate children.
Generally, I think you will agree with me that the father of an illegitimate
child is bound to support and maintain the child and that the mother of an illegitimate child is entitled to possession of the child unless the father shall legitimate as provided in the statutes, and further, that the mother as the only
616
recognized parent may exercise all parental control. (Code Sections 74-202 and 74-203).
Though there seems to be no law in point, I am inclined to the opinion that the foregoing is true regardless of whether or not the father and mother are minors or 21 years of age. The statutes also hold that parental power may be lost by a voluntary contract releasing the right to a third person, by the consent to adoption, or by abandonment of the child. (Code Section 74-108. paragraphs 1, 2 and 3). Generally, of course, the courts may exercise their discretion as to the custody or possession of a child looking to the interest and welfare of the child. (Code Section 74-107).
Next, Code Section 74-405, of the Annotated Supplement, provides in dealing with the matter of adoption, as follows:
"~f the child be illegitimate, the consent of the mother alone shall suffice. Such consent, however, shall not be required if the mother has surrendered all of her rights to said child to a licensed child placing agency or to the State Department of Public Welfare."
Code Section 74-404, dealing with adoption, provides as follows: "Consent of the parents shall not be required where a child has been abandoned by its parents, or where the parents of the child cannot be found, after a diligent search has been made, or where a parent is insane or otherwise incapacitated from giving such consent, and the court is of the opinion that the adoption is for the best interest of the child, or where the parents have surrendered all of their rights to said child to a licensed child-placing agency, or court of competent jurisdiction for adoption, or to the State Department of Public Welfare through its designated agents, or in the case of parents whose parental rights have been terminated by order of a juvenile or other court of competent jurisdiction, or where both parents are dead." Based on the two foregoing Code Sections and the other statutes which I have cited, I am again inclined to the; opinion that a minor mother may consent to the adoption of her illegitimate child and that such consent is binding. In other words, the courts, particularly in view of their power to consider the best interest of the child, might consider the consent of the minor girl, in the capacity of mother, as binding, even though in matters of contracts the courts might apply the general rule as to their voidability by a minor. The foregoing Code Sections also state that the consent of the mother is not required if the mother has surrendered all of her rights to said child to a licensed child-placing agency or to the State Department of Public Welfare. I reiterate then, it is my feeling that since the minor mother concerned in this case has both consented to the adoption and surrendered her illegitimate child to your Department, that such consent and surrender would be a sufficient basis for the court to award the adoption if in the opinion of the court the adoption is for the best interest of the child, and the other requisites of the statute are met. Since, however, I am unable to find any statute or case on this particular point, I must make the reservation that there is a possibility that the minor mother on reaching her majority may seek to revoke the adoption, but in view of the foregoing, I feel that the possibility of being successful in an attempted revocation would be very slight. You will note further from Code Section 74-404 that the consent of ~he parents shall not be required when a parent is insane or otherwise incapacitated,
617
if in the opinion of the court the adoption is for the best interest of the child. Under this phase of the statute, even if the court felt that the minority of the mother incapacitated her from giving her irrevocable consent to the adoption, the court, I feel, might still in its discretion order the adoption as being to the best interest of the child. As a matter of precaution, all facts and circ*mstances of this case should be made clear to the court hearing the proceeding. I would also seek from the minor mother not only her consent to the adoption but also a surrender of all her rights to the said child to the State Department of Public Welfare. I suggest also that you request the Judge to include in his order or award acknowledgment of the fact that the mother had both surrendered all her rights to the child and consented to the adoption, and the further acknowledgment that even though the consent and surrender were given by a minor mother, that the court is of the opinion that the adoption is for the best interest of the child.
When possible and feasible, the consent of a minor mother to the adoption of her illegitimate child might be strengthened by the following steps. First, the minor mother herself might have a guardian ad litem appointed for the adoption proceedings, and such guardian could also consent to the adoption. Next, you might have a guardian for the person and property of the illegitimate child appointed by the Ordinary in accordance with Code Section 49-110, and this guardian for the illegitimate child could also join in the consent of the adoption. Finally, there may be instances when it might be helpful to secure the consent of the father of the illegitimate child to the adoption, as well as the consent of the guardian of the minor mother, be it the natural guardian or the guardian of her person and property.
The Attorney General is out of town, and for that reason I am answering you personally in this instance.
PARENT AND CHILD-Services (Unofficial) The question of whether a child of two years is capable of rendering valu able services to parents is, in case of doubt, for jury.
April 20, 1949
Mr. Edward E. Gehring
Attorney at Law I am in receipt of your letter of April 15th in which you inquire as to
whethE-r or not a damage suit can be instituted for the death of a child under two years of age in this State.
There is no statutory law deaJing with that particular questton. Therefore, it is necessary to study the decisions of our Courts in order to arrive at any conclusion.
Section 105-107 of the Code of Georgia of 1933 reads as follows: "Every person may recover for torts committed to himself, his wife, his child, his ward, or his servant." Section 105-1307 of the Code reads as follows: "A mother, or, if no mother, a father, may recover for the homicide of a child, minor or sui juris, upon whom she or he is dependent or who contributes to her or his support, unless said child shall leave a wife, husband, or child. The mother or father shall be entitled to recover th~;: full value of the life of such child."
618
'llhese two sections do not answer your quetion, howevE:r, most of the decisions regarding your question will be found in the annotations under these sections.
The annotation of the case appearing in 15 Ga. App. at Page 182 reads as follows:
"Conclusively presumed that infant less than two years old was incapable of performing services of value to its parent."
A further annotation of this same case reads as follows: "Question whethE:r infant was capable of rendering valuable services to its parents was for jury where infant was more than two years old." The annotation under the case in 138 Ga. at Page 415 reads as follows: "It cannot be said, as matter of law, that child two years, 10 months, and 20 days old . . . was so incapable of performing such valuable services that defendant corporation would not be liable in damages for homicide of such child, if it be shown on trial that killing was tortious and not justified. "In such case trial judge should not take judicial cognizance of the fact that such child is incapable of performing valuablE: services. In cases of doubt as to whether a child of tender years is capable of performing valuable services, the court should submit the question of the ability of such child to perform valuable services to the jury for their determination under all the evidence submitted." I, therefore, have reached the conclusion that as a matter of law such a damage suit as you contemplate is not prohibited from being instituted in the Courts of this State. As the: Attorney General is prohibited by law from rendering official opinions to persons other than the Governor and heads of the various Departments, this letter must be considered as merely my personal views on this subject.
PENAL INSTITUTIONS-Camps Prison labor may be used in a soil conservation project on land owned by the United States as Georgia's contribution of one:-half the cost, provided prisoners remain under control of State Board of Corrections.
November 23, 1949 Honorable R. E. Warren, Director State Board of Corrections
Your letter of November 18 received. You state that a request has been made on thE: State Board of Corrections to use prisoner labor in the clearing of approximately 160 acres of land in Liberty County, Georgia, said land to be used as a Southeastern Tidewater Soil Conservation Experiment Station. You further state that the title to the land is in the United States of America, and that this is a project to be sponsored jointly by the federal government and the State of Georgia each participating fifty percent in this project. You request that I advise whether or not this is the type of work project on which State prisoners may be used. Under Section 6 of the 1946 Act the State Board of Corrections is give:n authority to adopt, establish and promulgate rules and regulations governing the transaction of business of the penal system, and the administration of the affairs of the penal system in the different institutions coming under authority
6Hl
and supervision of tht Board of Corrections. The Board of Corrections shall adopt rules governing the assignment, housing, working, feeding, clothing, treatment, discipline, rehabilitation, training and hospitalization of all prisoners coming under its control. The Board of Corrections is also by said Section given power to adopt rules and regulations governing the conduct of, or the welfare of the employees of the State institutions operating under its authority and the county public works camps and the State Highway camps operating under its supervision.
Section 77-375 of the pocket supplement of the Code of 1933 reads as follows:
"The theory of prison work shall be based on occupational and vocational training, and not on business conducted for profit or in competition with private enterprise and free labor. The provisions of this section shall not apply to county public works camps and State highway camps."
In view of the fact that the title to the land on which the proposed work is to be performed is in the United States Government and, therefore, publicly owned, and in view of the further fact that this is a public project sponsored jointly by the federal government and the State of Georgia, it is my opinion that the use of convicts by the State Board of Corrections, which is a part of the contribution of the State in meeting its obligations and furnishing fifty percent of the cost of the project, is authorized. However, the prisoner labor while at such work must remain and be under the ~ontrol of the State Board of Corrections and must not pass to the control and management of any corporation or person.
PENAL INSTITUTIONS-Extradition A prisoner may be surrendered by Georgia to Florida authorities an0 after expiration of Florida term may be extradited.
June 21, 1949 Hon. J. B. Hatchett, Assistant Director State Board of Corrections In Re: Dave Walden
This will acknowledge receipt of your letter of May 27, 1949, in regard to the above named person.
You state in your letter that during the time Walden was an escapee from a Georgia prison camp, he was charged with committing murder in Glynn County. That he evaded the officers of this State and went to Florida ami was there charged with a felony and received a sentence to the Florida prison camp. That while he was serving a sentence in the Florida prison camp, the Solicitor General of the Brunswick Circuit had an agreement with the Florida prison authorities that if they would allow him to bring Walden back to Georgia to try him on a murder charge, and if he failed to receive a death sentence, they would return him to Florida to serve out his sentence down there. I assume from your lettE:r that Walden did not receive the death sentence, but wa>J sentenced to a prison camp in Georgia where he is now serving the Georgia sentence.
After the above stated facts, you ask the following: Question: Can we legally carry out the agreement made by the Solicitor General of the Brunswick Circuit with the Florida prison officials?
620
Answer: I think we can. Question: If we carry out the agreement of the Florida prison authorit:e:s, will it in any way prevent us from taking custody of Walden at the expiration of the Florida sentence? Answer: I am of the opinion that when Walden has completed his sentence in Florida, he will be extraditable.
PENAL INSTITUTIONS-Training Schools Georgia training schools, while serving to detain certain classes of criminals, are quasi-educational.
April 22, 1949 Honorable J. M. Forrester, Director State Department of Public Welfare
I am pleased to acknowledge your letter of April 18, 1949 in which you ask my opinion as follows:
"We have information that surplus commodities are available to schools. For that reason, we are asking your opinion as to whether the Training School for Girls, Atlanta, Georgia, The Training School for Girls (Colored) at Macon, Georgia, and the Training School for Boys at Milledgeville, Georgia, are penal or educational Institutions."
Supplementing my opinion to you on April 5, 1949, it is well to note that except for the authorities cited in that opinion, the Appellate Courts of this State have not directly passed upon the question propounded by you.
The Supreme Court of Nebraska, in the case of Roberts v. The State, 82 Neb. 651, 118 N. W. 57 4, in reviewing a statute of that State which authorized the commitment of any boy under the age of 18 years to the State Industrial School when found guilty of any crime except murder or manslaughter, whether the same be a felony or misdemeanor, held:
"As said by the present Chief Justice in Leiby v. The State, 113 N.W. 125, our Industrial School is not a place of punishment nor is it in any sense a prison, no more so than our public schools upon which the law requires and enforces an attendance. It is a place of education, reformation, refinement and culture. It is a beneficient provision for the uplift of boys who by reason of their surroundings and conditions are deprived of an education and moral training which are so essential to their well-being and good citizenship. This is conceded by all Courts and writers upon the subject. The action of the Court in sending them to the school is to avoid a 'conviction' and changes the prospective punishment into a blessing. Any other conclusion does violence to the avowed purpose of the law."
This Industrial School in Nebraska and the provisions of law relating to commitment thereto are almost identical with those of this State.
The Supreme Court of Mississippi in the case of Bryant v. Brown, 151 Miss. 398, 118 S. 184, in reviewing a similar Training and Industrial School and their statutes of commitment thereto, held:
"The Industrial Training School is not a punitive institution. It is in no sense a prison, but is an educational, industrial institution, designed for the training or immoral, delinquent, incorrigible or abandoned children-to cause them to become moral and industrious. Its purpose is a beneficient one, often
621
transforming a VIciOus and criminally inclined child into a moral, indusbious and useful citizen."
In 26 Am. Juris. pp. 607-8 relating to institutions for the care, tra:ning or reformation of dependent, negligent or delinquent children, and for the reformation or confinement of adult offenders who are deemed to be proper subjects for committal to strictly penal institutions, it is stated:
"Since their purpose is generally educational and reformative, rather than penal, they are not regarded as prisons, although their inmates are restrained of liberty."
In 50 C. J., p. 330, it is stated: "Correctional or industrial institutions for minors within a certain age are not now regarded as prisoners; nor is a correctional institution for the care o E children committed under a juvenile court act a prison." In 1905 (Ga. L. 1905, p. 127) the General Assembly created a state institution to be known as the "Georgia State Reformatory" and provided that it would be under the control and management of the Prison Commission of Georgia." In 1919 the General Assembly under an Act approved August 18, 1919 (Ga. L. 1919, p. 373) changed the name of the "Georgia State Reformatory" to that of "Georgia Training School for Boys" and removed the institution from the control and management of the "Prison Commission of Georgia" and vested it in a new "Board of Managers", created by said Act to be composed of the State School Commissioner of Georgia, the Secretary of the State Board of Health, and five other persons, citizens of the State, two of whom to b~o women, to be appointed by the Governor. The Act of 1919 also repealed the words "prisoner within" from the old Act of 1905 wherever it appeared, and substituted therefor the words "person committed to". It also repealed the word "prisoner" wherever found in the 1905 Act and substituted the word "person" therefor wherever found. Since 1919 the Boys Training School has either been under the management and control of a Board of Control or the State Welfare Department. It will be noted that the General Assembly did not name the institutions under the consideration as reformatories or other similar names denoting a penal classification, but on the contrary, named these institutions "training schools" and placed them under the State Department of Public Welfare and not under the State Board of Corrections whereunder all penal institutions are placed by statute. As pointed out to you in my opinion of April 5, 1949, these training schooL cannot be strictly classified as either penal or educational, but as a special agency of the State designed to protect, correct, reclaim and redeem the youths committed to their care.
It is my opinion that the General Assembly intended by the use of the words "training school" and by its action in placing them under the supervision and direction of the State Department of Public Welfare which is an eleemosynary institution itself, to establish the State training schools in a separate category other than penal or educational institutions.
It is my further opinion that it was the intent of the General Assembly by its Acts above referred to, to remove the Georgia Training School for Boys from the penal classification of institutions to that of a separate and distinct classification of its own, an agency of the State known as the Georgia Training
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School for Boys, which to all intents and purposes is a quasi educational insti tution. Especially so, since there was in existbnce a Department of the State Government charged with the supervision and direction of all penal institutions at the times of enactment of the above enumerated statutbs.
It is my further opinion that the other training schools of our State as enumerated in your letter are to all intents and purposes quasi educational institutions rather than ptnal.
PENAL INSTITUTIONS-Train.ing Schools 1. The Superintendent of a training school is required to receive a person committed to the institution by proper authorities. 2. Return of an escaped pupil shall be by order of member of Board of Control, expense being paid from School maintenance fund.
Honorable Alan Kempbr, Director State Department of Public Welfare
June 23, 1949
In reply to your letter of June 17, 1949, requesting an opm10n on certain
matters pertaining to the affairs and conduct of a Georgia Training School,
I would like in the outset to refer you to the Annotated Code of Georgia of
1933, Section 24-2410, which reads as follows:
"24-2410. Child as ward of State.-It is the intention of this Chapter that
in all proceedings coming under its provisions the court shall proceed upon the
theory that said child is a ward of the State and is subject to the discipline and
entitled to the protection which the court should give such child under the
conditions disclosed in the case."
The superintendent .of a Georgia Training School has no right to refuse
the admission of a person that has been committed to the institution by proper
authorities. On the contrary, it is mandatory upon the superintendent to re-
ceive such person properly committed. In this connection, see the Annotated
Code of Georgia of 1933, Section 77-620, which reads as follows:
"77-620. Commitment by superior and juvenile courts.-.Judges of supe-
rior courts, as well as judges of juvenile courts, are authorized to commit in-
corrigible boys to this institution. Any commitment by superior or juvenile
courts shall be final, any boy committed thereto being subject solely to the
control of the authorities in charge of said institution with rbgard to rules for
parole, discharge, etc. If there shall be room, parents may enter incorrigible
boys on payment of the fees required by the management."
Also see in this connbction, Annotated Code of Georgia of 1933, Section
77-6'15, as follows:
'
"77-615. Record of commitment.-Whenever a court shall commit any
boy to the Training School for Boys, the clerk of the court shall furnish to
the Board of Control a certified record showing the order of commitment, agb
of the person, and the offense for which he was convicted. Upon receipt of
such record the Board shall send a properly delegated ptrson to the place
where said boy is detained, and the officer having custody of the boy shall
deliver him to said delegated person, and such boy shall therbupon be conveyed
to the Training School for Boys at the expense of the county from which he
shall have been committed."
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The excuse that "I haven't room" is not a legitimate excuse for not receiving a person committed by proper authority, and it is the duty of the superintendent to make room for a person so committed from resources at his hand.
The Training School is a place of last resort for children under 16 years of age. Children over 16 years of age may, in the discretion of the presiding judge, be committed to institutions other than the Training School. See the Annotated Code of Georgia of 1933, Section 77-602, which reads as follows:
"77-602. Convicts under 16 years old committed to schooL-All male persons of the age of 16 years or under, who have been duly convicted in any of the courts of this State of crime not punishable by death or imprisonment for life, may, in the discretion of the judge having jurisdiction, be committed to the Georgia State Training School for Boys."
The superintendent and others connected with the institution are servants of the State and are to carry out the State's plan for juvenile delinquents, without discretion as to what dE:linquents shall compose the School's population. See in this connection, Annotated Code of Georgia of 1933, Sections 77-605 and 77-606.
There is no provision of law covering the apprehension and return of an escape or runaway pupil. However, it is my opinion that this class or type of pupil should be governed by the general rule of law as provided for in the Annotated Code of Georgia of 1933, Section 77-611, as follows:
"77-611. Arrest and return of inmate.-A writtE:n order signed by any member of the Board of Control shall be sufficient warrant to any officer, or any other person named in the order, to authorize the officer, or other person named, to arrest and return to actual custody any conditionally relE:ased or paroled inmate; and it is the duty of all officers to execute any such order placed in their hands, the same as any ordinary criminal warrant."
I am also of the opinion that the expense of the apprehension and return of a pupil of this kind should be paid out of the general funds appropriated for the purpose of maintaining and carrying on the affairs of the Training School.
PENSIONS-Ex-Confederate Soldiers and Sailors Under the provision for cessation of payments to pensioners upon commitment as lunatics, a payment made on October 1st to a pensioner so committed on October 3rd was properly made.
Honorable R. T. Hawkins Ordinary, Sumter County
November 30, 1949
I am pleased to acknowledge your lE:tter of November 18, 1949 in which you ask my views relating to the payment of Confederate pensions.
Under the law I am prohibited from giving opinions to anyone except to the Governor and to the heads of the various State Departments on matters in which the State is involved. HowevH, I am always glad to be of assistance to county officers in helping them solve their problems in any way that I can. Therefore, anything that I may say in reply to your letter is to be considered as my personal views and as information only.
House Bill No. 484 (Ga. Laws, 1949, page 1118) amended Section 78-216 of the 1933 Annotated Code to rE:ad as follows:
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" . . . Widows of Confederate soldiers shall be paid a monthly pension of seventy-five ($75.00) dollars per month, payable on the first day of each month." (Emphasis supplied.)
The language of this law is clear in providing that the pension shall be paid on the first day of the month. In the use of the word "shall", it is clear that the intent of the General Assembly was to make it mandatory upon the Ordinary of the county to pay such pension on the first day of each month.
Section 78-219 of the 1933 Annotated Code provides: "It shall not be lawful for any pensioner of this State, after being adjudged a lunatic and confined in the State Hospital, to draw a pension from the pension fund of this State: Provided, that if said pensioner has a wife or minor children dependent on him, the same shall be paid to them." Section 78-220 of the 1933 Annotated Code provides that the Ordinary shall notify the State Department of Confederate Pensions and Records as soon as any pensioner has been adjudged a lunatic, stating the name, whether the pensioner is male or female, and the fund from which the pensioner has been drawing. This section also provides that nothing contained in said provision shall prevent any pensioner from being replaced on the pension roll when he has been discharged from the State Hospital. You state in your letter of November 18, 1949 to Miss Lillian Henderson, Director of the Department of Confederate Pensions and Records, that Mrs. W. B. Bradley was paid a Confederate widow's pension in the amount of $75.00 ,on the first day of October, 1949, which under Section 78-216 of the Code was due and payable on the first day of October, 1949. You also state that she was committed to the State Hospital on the third day of October, 1949 and that her name was dropped from the pension roll for the month of November, 1949. I assume that you mean by the word "committed" that she was adjudged and committed to the State Hospital on the third day of October, 1949. Assuming that the facts are as stated, it would be my personal view that it was your duty and that it was mandatory upon you to pay said pension on the first day of October, 1949. It is my further view that her adjudication and commitment to the Milledgeville State Hospital on the third day of October, 1949, had no bearing or effect upon the payment duly made under the law above cited on the first day of October, 1949. I know of no statutory provision requiring any reimbursem*nt of a Confederate widow's pension after the same has been paid according to law and on the date provided by law, under the facts set out in your letter above stated.
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PENSIONS-State Department of Vet.erans Service The "Welfare Fund" is the property of the employees of the department and is to be administered as provided by their constitution.
October 11, 1949 Honorable W. K. Barrett, Director State Department of Veterans Service
In your letter of October 4, 1949 you request me to give you an opmwn as to the legality of transferring the "Welfare Fund" of the employees of the State Department of Veterans Service to a fund to be known as a "Flower Fund". With your letter you attach a copy of the constitution of the Welfare Fund of the employees of the State Department of Veterans Service.
It is my opinion that this fund is the property of the employees of the State Department of Veterans E>ervice and not a State fund.
It is my further opinion that the State Department of Veterans Service as a State Agency does not have any control or direction over such fund. The control and direction being in the employees of the State Department of Veterans Service and duly constituted governing board appointed and installed under the provisions of their constitution, and their acts restricted to the authority contained in said constitution.
The constitution of this association of employees provides that they maYr by a three-fourths vote of tht entire roster of employees of the State Depart-ment of Veterans Service, change or amend their constitution in any way that. they may deem advisable and to their best interest.
PENSIONS-Veterans Education Coun.cil The Act placing Veterans Education Council tmployees under Merit System was not repealed by 1949 Veterans Reorganization Act.
March 15, 1949 Hon. Edwin L. Swain Merit System Director
I am pleased to acknowledge your letter of March 3rd, in which you ask for my official opinion on the question of whether the Act approved February 11, 1949 entitled "Veterans' Reorganization Act-No. 134" has thE: effect of repealing Section 19 of an Act approved March 27, 1947, (Ga. L. 1947, pp. 1143-1151) the same placing employees of the Vtterans Education Council under the Merit System laws.
The Vtterans' Reorganization Act passed by the recent legislature, does not repeal or abrogate the provisions of Section 19 of the former Act approved March 22, 1947. This will be shown by a careful reading of the latter Act. The caption of this bill reads in part as follows:
"An Act to repeal an Act approved March 27, 1947, entitled an Act to establish a Veterans Education Council, and cited as the 'Veterans Education Act of 1947,' Georgia Laws 1947, page 1143; to provide for the transfer to the Dtpartment of Veterans Service certain powers and duties heretofore devolving upon the Veterans Education Council and by the Director thereof, ..."
Section 2 of the Act reads as follows: "The Veterans Education Council established under the provisions of Election 5 of the Veterans Education Act of 1947, and the office of Director of Vet-
626
erans Education created under the provisions of Section 7 of said Act, arc hereby abolished, and said sections of said Act are hereby repealed in their entirety."
Section 3 of the Act reads as follows: "All powers and duties heretofore devolving upon the Veterans Education Council, and the Director therefor, by virtue of the provisions of the Veterans Education Act of 1947, are hereby transferred to the State Department of Veterans Service, the Veterans Service Board and the Director, thereof, respectively, as,provided under Article V, Section VI, Paragraph I of the Constitution of Georgia." In view of the above provisions of the Act approved February 11, 1949, I am of the opinion that the same does not repeal Section 19 of the former Act, and that the employees of the former Veterans Education Council are still subject to the provisions of the Merit System Act as provided for under the provisions of Section 19 of the Act approved March 27, 1947.
PERSONS-Imprisonment for debt (Unofficial) Georgia's Constitution forbids imprisonment for debt.
June 13, 1949 Hon. Wayne Pennington
I am in receipt of your letter of June 9th, in which you request information regarding the Georgia law concerning "debtor's jail."
This State has no such law, and as far as I have been able to ascertain, such a law has never been on the statute books of this State.
Article I, Section I, Paragraph 21 of the Constitution of 1945 rea(ls as follows:
"There shall be no imprisonment for debts." This provision is also contained in the old Constitution of 1877. Since my official authority is restricted by law to legal matters relating to the State government, my views in this letter must be accepted as unofficial and personal.
PERSONS-Restoration of Civil rights One under 16 years of age who commits a crime may be pardoned.
August 24, 1949 Honorable Benjamin M. Taub Deputy Attorney General Department of Law
Re: John W. Washington This will acknowledge your letter of August 12, 1949 making inquiry as to whether or not a person who committed a crime and was convicted therefor while under the age of sixteen may be pardoned. Answer: Yes. Article V, Section I, Paragraph XI of the Constitution of Georgia which is set out in the Acts of 1945 of the Georgia Legislature on page 34, creates the State Board of Pardons and Paroles and provides among other things as follows:
,
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"The State Board of Pardons and Paroles shall have power to grant rtprieves, pardons and paroles, to commute penalties, remove disabilities imposed by law, and may remit any part of a sentence for any offense against the State, after conviction except in cases of treason or impeachment, . . ."
While the State Board of Pardons and Paroles has pardoning powers, I understand they have a rule that they will not grant a pardon except where it is clearly shown that the convicted person is innocent. However, they frequently restore civil rights to convicted persons and I am enclosing herewith a copy of a blank application for restoration of civil rights.
The State Pardon and Parole Board may be reached by addressing your communication to the State Board of Pardons and Parolts, State Capitol, Atlanta, Georgia.
PROFESSIONS, BUSINESSES AND TRADES-Attorneys (Unofficial) A sheriff by reason of his position as a court officer is precluded from acting as an attorney.
November 21, 1949 Honorable Sido L. Ridolfi, Sheriff Mercer County Court House
I am in receipt of your letter of November 16, 1949 in which you ask whethu or not there is any statute in this State restricting or limiting the practice of law by a sheriff.
There is no statute which specifically says that a sheriff shall not practice law. Under the annotations of our Code chapter relating to attorneys and lawyers, the codifiers have inserted this language:
"Officers and judges of a court are generally prohibited from practicing law therein."
S~::ction 24-2801 of our Code reads as follows: "Sheriffs are elected, qualified, commissioned, hold their offices for the same term, and are subject to the same disabilities as the clerks of the superior courts." One of the disabilities imposed upon the clerks of the superior courts is found in Section 24-2702, which reads as follows: "No person is eligible to the office of clerk, or to perform any official duty as such, who, while in such capacity, practices law in his own or another's name, as a partner or otherwise, in any court, except in his own case." This, then, would seem to indicate that a sheriff would also be prohibited from engaging in the practice of law. Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
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PROFESSIONS, BUSINESSES AND TRADES-Auctioneers (Unofficial) An auctioneer may receive a license upon application to tax collector and payment of fee.
March 8, 1949 Gol. E. T. Nelson, Manager Nelson Auction School
This will acknowledge receipt of your letter of March 1st, in which you ask the following questions: "What are the requirements for receiving a license as an auctioneer in your State? Do you require a bond?"
I know of no particular requirements; however, there is a state law which requires a $10 fee to be paid for each day in each county in which sales are made. Following is the Code Section dealing with this subject:
"Each and every auctioneer selling by auction in this State jewelry, junk, furniture and household goods, live stock, farm implements and produce, or real estate, shall pay $10 for each day's sale in county in which he conducts said sale: Provided, however, that this section shall not apply to sheriffs and attorneys at law, conducting sales under power of sale, or other legal sale for their clients, and commissioners conducting sales by virtue of the order of any court of this State, nor to auctioneers of tobacco or other farm products;"
I doubt if there is a law requiring bond. To comply with the above quoted code section, it is necessary for the auctioneer to go to the tax collector in the county in which he proposes to carry on a sale at auction and state the number of days in which he propose~ to carry on such sale, and pay the required fee. Under the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departmEonts of State upon matters pertaining to the interests of the State. However, it is a pleasure for me to refer you to the provisions of law applicable to your question as a matter of information.
PROFESSIONS, BUSINESSES AND TRADES-Barbers and Hairdressers (Unofficial) A license is required of one doing a small amount of barbering in his own home.
March 30, 194:) Mr. C. G. Frost
I am pleased to acknowledge the letter from our mutual friend Mr. Arlie Price, enclosing letter from Honorable P. C. Hutchinson, Chairman of the State Board of Barber and Hairdresser Examiners, requesting that I advise you as to whether you would be in violation of the Barber and Hairdresser Law if you did a small amount of barbering at your home.
Georgia Code Annotated Supplement, Section 84-401, reads in part, as follows:
"To shave or trim the beard, cut or dress the hair, to give facial or scalp massaging, facial or scalp treatment with oils or creams and other preparations made for this purpose, either by hand or mechanical appliances, to singe and shampoo the hair, or to dye the hair of any living person for hire or pay,
629
shall be considered as practic'ing the occupation of a barber within the meaning of this Chapter."
And Section 84-402 of the Georgia Code Annotated Supplement reads, in part, as follows:
"It shall be unlawful for any person to follow the occupation of a barber or hairdressE:r in any city or town or outside of the cities and towns, unless he or she shall have first obtained a certificate of registration as provided in this Chapter."
From these two Sections of the law, it is my personal opinion that you would be in violation of the Barber and Hairdresser Law if you did any barbering for which you made a charge or received pay, in the event you do so without first obtaining a certificate of registration from the State Board of Barber and Hairdresser Examiners.
Since under the law I am prohibited from giving official opinions to anyone other than the Governor and heads of the various State departments on matters pertaining to the interests of the State, this letter is not to be considered as an official opinion. However, it is a pleasure to cite to you the above provisions of the law and to givE: you my personal views on the subject.
PROFESSIONS, BUSINESSES AND TRADES-Businesses A veteran granted an exemption to operate a dry cleaning and laundry service, who collects and takes clothes to another cleaner to be cleaned and returns them to his customers, is entitlE:d to such exemption.
March 11, 1949 Honorable C. Arthur Cheatham, Director State Department of Veterans Service
RE: Teal's Dry Cleaning and Laundry Strvice. C No 14 401 105. This is to comply with your request of March lOth in regard to the above matter. I understand the facts in this case to be as follows: (1) That Spencer A. Teal, an honorably discharged veteran, made application to the State Revenue Commission of Georgia for a certificate of exemption to operatE: a dry cleaning and laundry service; that this certificate was duly and regularly issued under Veterans License Act of 1935, approved March 15, 1935, as amended by an Act of 1943, approved March 20, 1943, and amended March 27, 1947. (2) That the veteran began operating in the City of Buchanan as Teal';:; Dry Cleaning and Laundry Service, and that he operated in the following manner: he would canvass the city and collect clothing from his customers for the purposE: of dry cleaning them, then carry the clothing to the Carrollton Laundry and Dry Cleaners who would actually do the dry cleaning, and that the veteran would pay the Carrollton Laundry and Dry Cleaners a fixed price; the veteran then would bring the clothes back to his customers in the City of Buchanan and deliver them to their owners and collect a fixed pricE:, which, of course, as I understand, would be a higher price than that paid to the Carrollton Laundry & Dry Cleaners. You state that the City of Buchanan has challenged the E:xemption on the ground of fraud, alleging that another enjoys the benefits of the exemption granted the veteran, having reference to the Carrollton Laundry & Dry ClE:aners.
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Question: Would the veteran be eligible for exemption to operate as above stated?
Acts of 1935, page 163, at Section 3 on page 164, provide: " . . . The State Revenue Commission may cancel or suspend certificates of exemption at any time when it shall sufficiently appear that the holder has become physically or financially ineligible to claim the exemption; that the certificate of exemption was procured through fraud or mistake or that the person to whom such certificate was issued has permitted another to enjoy the benefits of such exemption." After a careful consideration of the law above referred to, and assuming the facts as above stated to be true, I am of the opinion that Teal is now operating within the law, and that no other is enjoying the benefits of such exemption, and that the veteran, Teal, is eligible for the exemption as provided by law.
PROFESSIONS, BUSINESSES AND TRADES-Businesses Upon proper proof by a wholesaler of cigarettes that his cost of doing
business is less than 4% o/o, he will be permitted to use his demonstrated
net operating expense.
April 25, 1949 Hon. Charles D. Redwine Commissioner of Revenue
I am pleased to acknowledge your recent inquiry in reference to the Unfair Cigarette Sales Act, (Ga. L. 1949, pp. 695-702) in which you ask whether or not a wholesaler who is able to show by a proper audit that the cost of doing bu~;;iness is less than four and one-half per cent, is entitled to use this figure rather than the figure of four and one-half per cent which is presumed to be the basic cost of doing business as prescribed by statute.
Section 2 (j-2) of the Act provides as follows: "In the absence of proof of a lesser or higher cost of doing business by the wholesaler making the sale, the cost of doing business by the wholesaler
shall be presumed to be four and one-half per centum (4% o/o) of the 'basic
cost of cigarettes' to the wholesaler, plus cartage to the retail outlet, if performed or paid for by the wholesaler, which cartage cost, in the absence of proof of a lesser or higher cost, shall be deemed to be one-half of one per centum (% of 1%) of the 'basic cost of cigarettes' to the wholesaler."
It is my opinion that the above provision of law authorizes the wholesaler to produce evidence based on a standard method of accounting to show that the cost of doing business is less than the four and one-half per cent. prescribed by the statute. Of course it is necessary for you in administering the law to satisfy yourself that the method of accounting submitted by the wholesaler properly reflects his cost of doing business. If, in the exercise of your administrative discretion in the matter you are reasonably convinced that the method of accounting employed is proper, and that the same shows that the cost of doing business is less than four and one-half per cent, then, under these circ*mstances, you would be authorized to permit the wholesaler to use the net operating expense shown by the audit.
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PROFESSIONS, BUSINESSES AND TRADES-Businesses (Unofficial) A State Board may not deposit in its own name andjor use any moneys collected as taxes, fees or assessments.
April 28, 194:J
Hon. John G. Mauldin, Chairman
State Board of Warm Air
Heating Contractors
Your letter of April 11th addressed to Hon. Eugene Cook, Attorney Gen-
eral, has been referred to me for reply.
You ask if it is possible for the Board to collect fees as prescribed by law
and deposit them in a State depository and use such fees for the operation
of the Board.
Your question is answered by the provisions of the Constitution under
Section 2-5503, which provides:
"All money collected from taxes, fees and assessments for State purposes,
as authorized by revenue measures enacted by the General Assembly, shall be
paid into the General Fund of the State Treasury and shall be appropriated
therefrom, as required by this Constitution, for the purposes set out in this
Section and for these purposes only." (Emphasis supplied.)
Section 2-1911 provides:
"No money shall be drawn from the Treasury except by appropriation
made at law."
The above provisions of the Constitution definitely require all fees to be
paid into the general State Treasury and then appropriated therefrom by
appropriate Act of the General Assembly. A State agency would therefore
not be authorized to collect fees and deposit same in its own account, but
rather such fees must be paid over in compliance with the above provisions of
the Constitution.
PROFESSIONS, BUSINESSES AND TRADES-Businesses (Unofficial) Neither a corporation nor a partnership may operate under a veterans' license e:aemption.
May 6, 1949 Honorable T. F. Proctor Tax Commissioner, Grady County
I am pleased to acknowledge your letter relativ6 to whether veterans should be exempted from professional and occupational tax where the business in which they are engaged is a partnership or corporation.
As you know, the Attorney Gt.neral is prohibited by law from rendering official opinions to anyone except the Governor and heads of the various departments of the State. Therefore, this information is to be considered purely of a personal nature and not binding on anyone.
The administrative construction of this law is that if a VE>teran is a partner, or is a member of a corporation, that these entities are not exempt under the veterans' exemption law. Code Section 84-2020, and Code Section 84-9945 are quoted below, and I believe they are self-explanatory as to why such endeavors are not under th exemption law. Further, it is my unofficial opinion that this administrative construction is correct.
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"84-2020. Same; penalty for allowing use of certificate by person other than veteran.-Any veteran receiving a certificate of exemption from the State Revenue Commissioner shall not allow the use of his name or the use of his certificate by any other person for carrying on any business or proftssion in this State for the purpose of avoiding any tax levied by the State or any county or municipality in this State, and any veteran allowing his certificate of exemption to be used in violation of this provision shall be subject to have his ctrtificate cancelled by the State Revenue Commissioner."
"84-9945.-Person other than lawful holder operating business or profession under veterans' certificate of exemption. Any person attempting to operate any business or profession under a veterans' ctrtificate of exemption who is not the true and lawful holder of such certificate shall be guilty of a misdemeanor and shall, upon conviction, be punished as for a misdemeanor."
PROFESSIONS, BUSINESSES AND TRADES-Businesses The rolling store tax is collected by the State Revenue Commissioner.
September 9, 1949 Honorable Robert Culpepper, Jr. Attorney At Law
Your letter of August 13, 1949, addressed to the Attorney General with reference to the collection of rolling store taxes has been referred to me for reply. The Attornty General is absent from his office on vacation and is expected back some time next week.
Since the Attorney General's legal authority is restricted by law to matters relating to State Government, an opinion rendered by him, or any member of his staff, to anyone except tht Governor and heads of the various departments of State must necessarily be personal and unofficial. However, I am glad to give you the following information.
The rolling store tax for the State is collected by the State Revenue Commissioner through his agents, as provided under Section 92-2955 of the Code of 1933, Annotated Pocket Part. Counties are authorized to levy a license fee or tax on rolling stores as provided under Section 92-2960 of the Code of 1933, Annotated Pocket Part, which is levied and collected by the proper county authorities.
PROFESSIONS, BUSINESSES AND TRADES-Businesses Since the carbonic acid gas tax act provides that failure to make return is a misdemeanor, a veteran is not exempt from the tax.
December 19, 1949 Honorable W. Harvey Atkins, Director Proptrty & License Tax Unit Department of Revenue
I am pleased to acknowledge your letter of November 15, 1949 relative to whether a veteran's license exemption certificate exempts a veteran from the carbonic acid gas tax.
As you know, carbonic acid gas tax is codified in Section 92-805, and states in effect that people engaged in the business of manufacturing or vend-
633
ing soft drinks shall pay as a privilege lic~nse four cents on each pound of carbonic acid gas.
At first blush it would appear that carbonic acid dealers would be entitled to this exemption, but in view of Code Section 92-9901, whL:h :;taLes:
"Any person wilfully failing or refusing to make the reports and remittances required in section 92-805, relating to license taxes on carbonic gas and substitutes thtrefor, shall be guilty of a misdemeanor; and any person wilfully making a false affidavit as to any report required shall be guilty of perjury.", it appears that failure to file these returns is a criminal offense, and, therefore, it would be impossible to grant anyone an exemption under any law for a crime.
PROFESSIONS, BUSINESSES AND TRADES-Dental Hygienists License may be issued by the Board of Dental Examiners only upon the applicant passing both clinical and written examinations.
Honorable R. C. Coleman Joint Secretary State Examining Boards Department of State ,
November 17, 1949
This is to comply with your request of November 17, 1949 in which you ask my opinion of the following question:
"Please advise me whether or not the Board of Dental Examiners under the law may grant licenses to Dental Hygi~nists without giving an examination both written and clinical or if they may grant licenses by written or clinical."
It is my opinion that the law requires that both written and clinical examinations be given before licenses are issued to practice the profession of Dental Hygienist.
In support of this opinion, I call your attention to an Act of the Legislature of 1949 (Ga. Laws, 1949, pp. 1192-1194. Section 2 of said Act provides in part as follows:
"That no person shall practice as a dental hygienist in the State of Georgia until such person has passed a written and a clinical examination conducted by the Board of Dental Examiners of Georgia."
The Section above referred to also makes the following provision: "The said Board of Dental Examiners shall issue licenses and license certificates as dental hygienists to those persons who have passed said examination in a manner satisfactory to the said Board, ..." In the case of La.mon,s et al. v. Yarbrough et al., the Supreme Court in a recent decision had this to say: "It is contended by counsel for the plaintiffs in error that the act under consideration is violative of the equal protection and due process clauses of the Federal and State Constitutions, as being discriminatory in that the act requires 'college trained applicants for license to take both a theoretical (written) examination and a practical (clinical) examination; whereas, applicants who had worked in a dentist's office would only be required to take a practical (clinical) examination, without a written theoretical examination.' With this contention we do not agree. Section 2 of the Act provides: 'That no person
634
shall practice as a dental hygienist in the State of Georgia until such person has passed a written and a clinical examination conducted by the Board of Dental Examiners of Georgia' ..."
So, it is my opinion as above stated that the Board is not authorized to issue licenses for dental hygienists until the candidate or applicant has passed both the clinical and written examinations satisfactory to the Board of Dental Examiners.
PROFESSIONS, BUSINESSES AND TRADES-Detective Agencies (Unofficial) 1. Sets out provisions of statute as to fees of detective agency. 2. There are no residential requirements for establishment of such agency.
January 17, 1949 Mr. Harold Jos. Marzano
This will acknowledge receipt of your letter of January 10, 1949, in which you request information relative to Georgia laws concerning the licensing and operating of a Private Detective Agency in this state; also, you inquire how long you would have to be a resident of Georgia before you may apply for a license.
The Georgia law applicable to license tax assessed against detective agencies operating in this State is contained in Section 92-505 of the 1933 Code of Georgia, Annotated, which Section reads as follows:
"Each person, firm, or corporation operating a detective agency or doing detective work for hire or compensation, shall pay, for each office established in this State, in or near cities or towns of 25,000 or more inhabitants, $200; in or near citi:s or towns of 10,000 to 25,000 inhabitants, $50; and in or near cities or towns of less than 10,000 inhabitants, $25."
It is called to your attention that the above Section refers to State taxes only; whether or not there would be a county andjor city license tax would depend on local legislation, and it is suggest:d you contact the authorities in the particular locality in which you plan to make your headquarters for this information.
Georgia has no law as to requirements of residence. You may open business here as soon as you have met the requirements set out in the above Code Section, and of the municipality.
Undtr the Constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various Departments of State upon matters pertaining to the interests of the State. However, it is a pleasure for me to refer you to the provisions of law applicable to your question as a matter of information.
635
PROFESSIONS, BUSINESSES AND TRADES-Nurses In the event of transfE:r from one school of nursing to another, advanced credit in excess of 12 months may not be given.
September 9, 1949 Dr. R. C. Coleman, Joint Secretary State Examining Boards Department of State
This is in reply to your letter of September 6, 1949 which states in one paragraph as follows:
"Sometime ago Mrs. Mae M. Jones, Acting Educational Supervisor, Board of Examiners for Nurses of Georgia, requestE:d an opinion from you as to the Board's authority under Section 84-1008 in granting to student nurses a transfer from one school of nursing to another school. It seems that they have one student who has had two years training and the board would like to know whethE:r they have the authority to grant full credit of two years to this one student who entered the school in good faith that she would receive full credit for the time she spent in said school."
This office ruled on October 20, 1947 that the Board of Examiners would not have power to grant advanced credit in any case in excess of twelve months.
After a careful study of Code Section 84-1008, I am of the opinion that the answer to your question as to whether thE: Board may grant advanced credit in excess of twelve months to student nurses where such period and excess were earned in an institution other than from which graduation ensued, must be in the negative.
PROFESSIONS, BUSINESSES AND TRADES-Real Estate Brokers The provision requiring submission by brokers of proposals for certain subdivisions is within the powers granted the Real Estate Commission.
August 9, 194!1 Honorable R. C. Coleman, Joint Secretary State Examining Boards Georgia Real Estate Commission
I am in receipt of your letter of August 3rd requesting my written opinion as to whethtr or not the Georgia Real Estate Commission may require a broker or real estate salesman, who is subdividing a tract of land into twenty or more lots, to have this subdivision approved by the Georgia Real Estate Commission.
I understand that the Commission is concerned with the legality of its Rule 16, which provides:
"16. SUBDIVISIONS. All brokers subdividing a tract of land into twenty or more lots and offering same for sale for an ownE:r, or offering for sale a tract already subdivided, must make application to the Commission for approval. Blanks will be furnished by the Commission.
In this connection I have also examined the printed form of the Commission entitled "Subdivision Questionnaire". This questionnaire requires the an-. swer to a list of twenty questions such as: Is the property in the city limits? ; A list of liens against the property and the names of persons holding such liens;;
636
A description of the agreement, if any, for release of lien upon sale; Improvem~::nts guaranteed in sales contracts; and other questions which appear to have for their purpose a full disclosure of information materially affecting prospective purchaser.
The Georgia Real Estate Commission derives its authority from Acts of the Legislature which have been incorporated in the Code of Chapter 84-14. Section 84-1404 of the Code defines thE: authority of the Georgia Real Estate Commission to make rules and regulations in the following terms:
" . . . The Commission . . . may do all things necessary and convenient to carry into effect the provisions of this Chapter and may from time to time promulgate neceHary rules and regulations to carry out the provisions of this Chapter .." (Emphasis supplied.)
In the final sentence of Section 1404 members of the Commission are further authorized:
" ... generally (to) do such acts and things as may to the Commission .seem advisable in the advancement of the profession and the standards thereof."
The central purpose of Chapter 84-14 appears to be the licensing of 'competent and reliable persons as real estatE: brokers and salesmen within the counties having a population of more than 75,000 for the protection of the public against the incompetent and unscrupulous.
Section 84-1417 provides that the Commission may suspend or revoke licenses of those brokers and sal~::smen found guilty of making substantial misrepresentations or for dishonest dealing along with a number of other specific grounds for revocation. The holder of the license may be guilty of fraud and may impose upon the public as well by failing to disclose information regarding property he offers for salE: as by affirmatively misrepresenting facts with regard to such property. It would appear that the Board's Rule 16 and the information which it requires in order to grant approval is calculated to prevent the occurrence of the sort of fraud and misrepresentation which would be _ground for revocation of a license.
I am therefore of the opinion that the regulation in question is one which properly falls within the powtr granted to the Board by the Legislature.
.PROFESSIONS, BUSINESSES AND TRADES-Real Estate Brokers The mere running of an advertisem*nt offering for sale real estate not .owned by the advertiser does not violate the prohibition against holding <On~::s self out as a dealer, without a license.
August 15, 1949 Honorable R. C. Coleman Joint Secretary State Examining Boards ,
This is to acknowledge receipt of your letter of August 12, 1949 requesting an opinion.
You state in your letter that the following advE:rtisem*nt appeared in the Macon Telegraph:
"NEW HOUSE* 404 Capitol Ave., Gash price $4,000.00, or will take part and balance monthly like rent. Large lot for garden. Immediate occupancy. See me, H. W. Elkins, 202 Bibb Bldg."
637
You also state in your letter that the person running this ad does not have a license as a real estate broker or real estate salesman. You further state that it is your understanding that the person running this advertisem*nt is not the owner of the property referred to therein.
You then ask the following question: "Should it appear that the person running the above advertisem*nt did not charge any fee or commission would he be subject to criminal prosecution for violating that part of Section 84-1402 of the Code of Georgia which provides as follows: 'also any person, firm or corporation advertising through signs, newspapers or otherwise, as operating or conducting a real estate office or real estate business.' " I am definitely of the opinion that the running of the above quoted advertisem*nt standing alone would not be such a violation of Code Section. 84-1402 as to subject the author thereof to criminal prosecution.
PROFESSIONS, BUSINESSES AND TRADES-Real Estate Brokers The mere fact of change of location of business does not necessitate the giving of a bond by a broker who was doing business in January, 1949.
Honorable R. C. Coleman Joint Secretary State Examining Boards
September 22, 1949
This is in reply to your letter of September 16, 1949, in which you request as follows:
"Please furnish us with a written opinion as to whether a bond must be required by one who was licensed in January, 1949, and changes their business location."
After considering Code Section 84-1409 and 84-1412, I am of the opinion that if a person was acting as a real estate broker in January, 1949 and had' complied with all of the laws as to his engaging in such business, that the mere, changing of the location of his business, that alone, would not require his givinga bond. Under Code Section 84-1412, notice in writing is required, and said notice must be given to the Commission of any change of principal business location. It also requires, when a broker has given such a notice, that the Commission shall issue a new license for the unt:xpired term without charge. So, I am of the opinion that under such circ*mstances the broker would not be required to give a bond.
This would be true provided the bond did not limit the liability to the old location.
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PROFESSIONS, BUSINESSES AND TRADES-Real Estate Brokers Bond is required of a former member of a dissolvE:d partnership who wishes to secure a license as an individual.
October 9, 1949 Dr. R. C. Coleman Joint Secretary State Examining Boards
This will acknowledge receipt of your request of OctobE:r 7, 1949 in which you ask my opinion as follows:
"Please furnish the Georgia Real Estate Commission with a written opinion as to whether a bond must be required of a broker who was licensed in January, 1949, as a partner in a firm.
"The partnership was dissolved and now one member is applying for an individual licE:nse. Is a bond required of this applicant?"
It is my opinion that when a partnership is dissolved and any member of said partnership desires a license as an individual he would be required to comply with Code Section 84-1409 which provides among other things that,
" ... all licensed brokers shall give bond in the sum of $1,000.00, acceptable to and to be approved by said Commission ..."
PROFESSIONS, BUSINESSES AND TRADES-Real Estate Brokers In evE:nt of failure by a broker to make timely application for renewal of
license, the Commission may require applicant to pass examination.
October 17, 1949 Honorable R. C. Coleman Joint Secretary State Examining Boards
This is in reply to your letter of October 10, 1949, in which you make the following inquiry:
"A man was engaged in the real E:state business prior to the Act of 1925 <ereating the Real Estate Commission. He has continuously remained in the business as a real estate broker since that time. On the first of January of thi8 year he failed' to make application for a license, but has continued in business 'Without a license. He is now making application for license.
"Would the Commission, under s1,1ch circ*mstances, have authority to re<quire the applicant, in addition to making the application for license, to also .stand an examination before the license would be issued."
Under the Act of 1949 amending Code Section 84-1401 through 84-1421, on page 943 of the Georgia Laws of 1949, especially under Section III of said Act, it is provided as follows:
"Before an individual may apply for a broker's license he must have had a salesman's license in the State of Georgia for at least twelve months and must have been actively engaged in the real estate business for such period of time, and must have passed an examination provided by the Commission; except when the applicant has previously held a broker's license in this State he will be eligible for reinstatement of his license upon satisfactory proof being furnished the Commission that he was in good standing with the Georgia Real Estate Commission at the time of his retirement from the real estate business,
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and conditioned upon his passing an examination to be giv!':n by the Commission, and provided that all licensed brokers shall give bond in the sum of $1,000.00, acceptable to and to be approved by said Commission to abide by all laws enacted in reference to such brokers."
It is my opinion that if a person who has been operating in the real !':state business under the laws of Georgia but failed to apply for license on the 1st of January, 1949, but did apply in August, 1949, the Commission would have authority to require such applicant under the above quoted law to pass such examination as required by the Commission before granting a license.
PUBLIC FINANCE-Revenue Anticipation Certificates; Road Bonds 1. County authorities may construct roads within St. Simons District. 2. Revenue anticipation certificates may not be issued therefor. 3. The counties within the district may issue bonds for road purposE>s in fixed percentages of taxable property valuation.
May 18, 1949 Honorable Ray W. Whittle County Commissioner, Glynn County
Your letter of May 16, received. You request an unofficial opmiOn upon the rights of the St. Simons District under the Constitution. In your letter you state:
"It is contemplated by the improvement district to build a new toll road from the Island of St. Simons to the mainland, at a cost of less than a million dollars. The district would have to issue revenue certificates in such amount as the traffic survey would approve. They would have to bond the district by referendum for an additional 2 to 3 hundr!':d thousand dollars, underwriting any deficit which the road might not finance to that amount."
You have propounded three questions: 1. Does the district have the right under the amendment to the Constitution to construct the road? 2. Does th!': district have the right to issue revenue certificates to construct the road? 3. Does the district have the right to issue bonds by referendum of the district to be used for the construction of the road? Reference is made to the Acts of 1929, page 137, which is an Act amending Section I of Article XI of the Constitution cf Georgia, by adding the following paragraph: "The governing authorities of the County of Glynn and of th!': County Qf Mcintosh shall have authority to establish and administer within the bounds Qf their respective counties districts for special sanitation, fire prevention, police protection, or building and improving roads, and, to carry out the purposes of such !':stablishment, they shall have authority to levy taxes upon the taxable property in said respective districts, to issue bonds of such districts upon a vote of the qualified voters of such districts and under the rules of law governing the issuance of county bonds, and to levy assessments against and eollect service charges from the property abutting upon or serv!':d by the utilities established or provided pursuant hereto. Provided, that districts in Mc1ntosh County may issue bonds not exceeding 14% of the value of the taxable property therein."
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The above quoted amendment was ratified November 4, 1930, and Article VII, Section X, Paragraph I of the 1945 Constitution, now in effect, in part is as follows:
"Amendments to the Constitution of the State of Georgia of 1877 in effect at the date of the ratification by the voters of the State, of this Constitution, shall continue of full force and effect after the ratification of this Constitution, Wh6re such amendments are of merely local, and not, general application, including the amendments pertaining to the Coastal Highway District of this State."
It is therefore my opinion that this amendment became a part of the Ci>nstitution as it now exists and that the County authorities would be authorized to build and construct roads located within the district.
In answer to your second question, reference is made to the Revt;nue Certificate law of 1937 (Acts of 1937, p. 761), as amended by Acts of 1939, page 362, authorizing counties, cities and towns to acquire, construct, rt;construct, improve, better and extend revenue-producing undertakings; to maintain and operate the same; to prescribe, revise and collect rates, fees, tolls and charges for the services, facilities and commodities furnished thereby; and, in anticipation of the collection of the revt;nues thereof, to issue negotiable certificates payable solely from such revenues regulating the issuance of such certificates and providing for their payment and for the rights of the holders thereof."
This act was further amended by the Act of 1943, page 47, which provided that no issuing political subdivision of the State shall exercise the power of taxation for the purpose of paying the principal or interest of any such revenue anticipation obligations or any part thereof.
Reference is made to the Constitutional amendment creating the district, heretofore quoted, which limits the governing authorities to the levy of taxes and to the issuing of bonds. It is therefore my opinion that the district is without authority to issue revenue anticipation certificates to finance the building and construction of the proposed road for the reason that no authority is given for this purpose in the Constitutional amendment creating this district, and for the further reason that the Revenue Certificate Act is limited to counties, cities and towns.
Referring again to the Constitutional amendment herein quoted, which sets out that the governing authorities of the County of Glynn and the County of Mcintosh shall have authority to levy taxes, to issue bonds of such districts, upon a vote of the qualified voters of such districts, and providing that districts in Mcintosh County may issue bonds not exceeding 14% of the value of the taxable property therein, it is my opinion that the districts which have been designated by the governing authorities of Mcintosh County, as set up in the Constitutional amendment, would have authority to issue bonds not exceeding 14% of the taxable property in said district, after a referendum was held in terms of the law governing the issuance of county bonds.
In view of the fact that no specified amount of bonds is authorized as to the districts located in Glynn County, it is my opinion that the County of Glynn would not be authorized to issue bonds exceeding an amount of 7% of the assessed value of all the taxable property in said district, after a referendum is held in accordance with the law governing the issuance of county bonds.
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This is based on Article VII, Section VII, Paragraph I of the Constitution of the State of Georgia.
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone other than the Governor and the heads of thf: various State departments upon matters pertaining to the interests of the State. However, it is a pleasure to cite to you the above provisions of law, and I trust that these will be of benefit to you.
PUBLIC FINANCE-Temporary 1loans (Un.official) The limit of 75o/o of prf:ceding year's gross income placed upon temporary loans by a county does not include bonded indebtedness. 2. The words "from taxes collected by such county" do not include gasoline taxes.
April 29, 1949 Honorable George E. Sims, Jr. County Attorney and Clerk Hanco*ck County
I am pleased to acknowledge your letter of April 16, 1949, with rf:ference to the procurement of a temporary loan by Hanco*ck County under the provisions of Paragraph IV, Article VII, of the Constitution of Georgia of 1945 (Code Section 2-6004 of the existing code).
I regret to advise you that under the law the Attorney General is prohibited from rendering official opinions to anyone excf:pt the Governor and the heads of the various State departments. Therefore, this information is to be considered purely of a personal nature and is not binding on anyone.
The cited code section reads as follows: "2-6004. Temporary loans authorized; conditions.-In addition to thf: obligations hereinbefore allowed, each county, municipality and political subdivision of the State authorized to levy taxes, is given the authority to make temporary loans between January 1st and December 31st in each year to pay expenses for such year, upon the. following conditions: The aggregate amount of all such loans of such county, municipality or political subdivision outstanding at any one time, shall not exceed seventy-five per centum of thf: total gross income of such county, municipality or political subdivision, from taxes collected by such county, municipality or political subdivision in the last precf:ding year. Each such loan shall be payable on or before December 31st of the calendar year in which such Joan is made. No loan may be made in any year under the provisions of this paragraph when there is a loan then unpaid which was made in a prior year under the provisions of this paragraph. Each such loan shall be first authorized by resolution fixing the terms of such loan, adoptE.d by a majority vote of the governing body of such county, city or political subdivision, at a meeting legally held, and such resolution shall appear upon the minutes of such meeting. No such county, municipality or subdivision shall incur in any one calendar year, an aggregate of such temporary loans and other contracts or obligations for current expenses, in excess of the total anticipated revenue of such county, municipality or subdivision for such calendar year, or issue in one calendar year notes, warrants or other evidences of
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such indebtedness in a total amount in excess of such anticipated revenue for such year."
You propound in your letter the following questions in regard to the above code section:
1. Do the words "of all such loans" include the bonded indebtedness of" the county?
2. Do the words "of the total gross income of such county from taxe& collected by such county" intend to include the gasoline tax allocation?
It is believed that this code section has reference to only temporary loans and that such indebtedness does not include bonded indebtedness, as this code section provides only for temporary loans and states that all of such loans shall not exceed seventy-five per centum of the total gross income of such county. (Emphasis supplied.)
Regarding your second inquiry-In view of the fact that the above code section provides that the amount of temporary loans may not exceed seventyfive per centum of the total gross income of the county from taxes collected by such county, the last preceding year, the gasoline tax allocation should not be included in the gross income, as these taxes are collected by the State and not by the county as required by this code section, to arrive at the maximum amount of temporary loans that may be procured.
PUBLIC FINANCE-Temporary loans (Unofficial) Sets out purposes, amount and manner of repayment of temporary loans which Governor may authorize in emergencies.
July 12, 194!) Honorable JohnS. Hood, Jr. Representative, Chatham Gounty
I am plE>ased to acknowledge your letter of July 11, 1949 in whic'A you ask my advice as follows:
"Please advise me if the General Assembly andjor the Governor can authorize a short term loan sufficient to finance the needs which are presented by the present emergency."
Article VII, Section III, Paragraph I, of the 1945 Constitution of Georgia provides as follows:
"No debt shall be contracted by, or on behalf of, the State, except to supply such temporary deficit as may exist in the treasury in any year for necessary delay in collecting the taxes of that yE>ar, to repel invasion, suppress insurrection and defend the State in time of war, or to pay the existing public debt; but the debt created to supply deficiencies in revenue shall not exceed, in the aggregate, five hundred thousand dollars, and any loan made for this purpose shall be repaid out of the taxes levied for the year in which the loan is made. However, said debt may be increased in the sum of three million, five hundred thousand dollars for the payment of the public school teachers of the State only. The principal amount borrowed for payment of teachers shall be repaid each year out of the common school appropriation, and the interest paid thtreon shall be paid each year out of the gen!il'al funds of the State."
This Constitutional provision limits the purposes for which a debt may be contracted by the State and the amounts. To supply a temporary deficit as
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may exist in the treasury in any year for necessary delay in collecting the taxes of that year, to repel invasion, suppress insurrection and defend the State in time of war, or to pay the existing public debt, the State may borrow, not to exceed in the aggregate, the sum of five hundred thousand dollars and such loan must be repaid out of the taxes levied for the year in which the loan is made.
This Constitutional provision also provides that the State debt may be increased in the sum of three million, fivE:' hundred thousand dollars for the payment of the public school teachers of the State only, and that the principal amount borrowed for payment of teachers must be repaid each year out of the common school appropriation, and the interest thereon paid each year out of the general funds of the State.
Section 32-1301 of the 1933 Annotated Code of Georgia, Pocket Supplement, provides as follows:
"Pursuant to the amendment to Article VII, Section III, Paragraph I
( 2-5101), of the Constitution of this State, authorizing the contraction by or on behalf of the State of a debt in an amount of $3,500,000 for the purpose of paying the public school teachers, the Governor is hereby authorized and empowered to execute a note or notes for such amount and for such time of payment as the condition of the treasury may demand, at any time in his discretion, for the purpose of paying the public school teachers. The aggregate of said note or notes shall not at any time exceed the aforesaid constitutional limit and said note or notes shall not mature later than the last day of the fiscal year of this State during which they money is borrowed, and the principal amount so borrowed shall be repaid each fiscal year out of the common school appropriation, and the interest thereon shall be paid each fiscal year out of the general funds of the State, accrued during the fiscal year of issue of said notes. Said notes shall be signed by the Governor and countersigned by the Comptroller General and Secretary of State."
Section 32-1302 of the 1933 Annotated Code of Georgia, provides as follows:
"The Governor is further authorized and empowered, at any time in his discretion, to impress, use, and employ for the payment of public school teachers, and without payment of interest thereon, any funds in the treasury which may have been allocated for any special fund or purpose, so as to obviate the necessity of increasing the public debt of the State and the payment of interest: Provided, however, that it shall be the duty of the Governor, when any fund shall be so used, to replace said fund or funds by borrowing the same, if necessary, at such time as will not interfere with the expenditure for the purpose appropriated of any special or allocated fund or funds so drawn upon by the Governor by virtue of the authority granted in this Chapter."
Section 32-1303 of the 1933 Annotated Code of Georgia, provides as follows:
"The Governor shall not during any calendar year impress, use, or employ any funds in the treasury allocated or belonging to any special fund or purpose in excess of the borrowing power of the Governor under this Chapter."
Sections 32-1302 and 32-1303 above cited are now ineffective since the adoption of the 1945 Constitution which abolished, by the provisions of Article VII, Section II, Paragraph III, special or al1ocated funds and requires
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that all funds of the State be paid into the General Fund of the State Treasury and appropriated therefrom as required by the Constitution.
The above cited constitutiorial provisions, Article VII, Section III, Paragraph I, limits the purposes and the amounts to those therein specifie:d that may be borrowed by the State.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
PUBLIC HEALTH-County Board (Unofficial) A County may, in its discretion, supplement the pay of health employees.
February 24, 1949 Hon. Henry A. Stewart, Sr. County Attorney Polk County
I am pleased to acknowledge your lette:r of February 18th, in which you state that the County Board of Health desires to raise the salaries of its employees above the amount fixed by law under the merit system. You de:sire to know whether or not the county has the right to supplement such salaries.
Under Regulation A, Sec. A-.500 of the State Pe:rsonnel Rules and Regulations, a county is given the authority to supplement the pay of health employees, provided it desires to do so. Under the prese:nt rules, such a matter addresses itself to the discretion of the county authorities. If you desire further information on this subject, I would suggest that you contact Hon. Edwin Swain, who is located at 20 Ivy Street, S. E., Atlanta, Georgia. I am sure that Mr. Swain will be glad to give you further information.
Of course you understand that under the law, the Attorney General i3 prohibited from rendering official opinions to anyone other than the Governor' and heads of the various departments of State upon matters pertaining to the ope:ration of the State government. Therefore, this letter is to be treated purely as an expression of my private opinion on the subject, and is not binding upon you, the county or anyone else. It is always a pleasure to render any information I can to our local county attorneys.
PUBLIC HEALTH-County Board (Unofficial) Ex officio members of county boards of health are required to take the oath of office usually taken by other county officers.
May 10, 1949 Mr. G. G. Ezell, Superintendent Jasper County Board of Education
I am ple:ased to acknowledge your letter of May fJ, 1949 in which you ask my opinion concerning the oath of office required of ex-officio members of the County Boards of Health.
Under the law I can only give official opmwns to the Governor and heads of the various Departments of the State Government and then on matters in which the interest of the State is involved. However, I am always glad to be of such assistance as I can to county officers without invading the: prov-
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ince of their county attorney. Therefore, anything that I may say in reply to your letter is to be considered unofficial and not binding upon anyone in any manner whatsoever, since the question propounded by you is one which properly addresses itself to the county attornE:y of Jasper County, being a matter involving county officers and not State officers.
Section 88-201 of the 1933 Annotated Code of Georgia, Pocket Supplement, relating to the creation, membership, terms of office, vacancies, and authority of County Boards of Health, provides in part as follows:
"A county board of health for each county is hereby created, composed of three persons, two of whom shall be members of such board by virtue of their offices, to wit: the county superintendent of schools, and the chairman of the board of roads and revenues of the county, ... and one reputable physician elected by the grand jury of the county, ... Each member of the several county boards of health, whether ex-officio or appointed as herein provided, shall have a certificate of membership on such board signed by the Director of the Georgia Department of Public Health, and take the oath of office usually taken by other c:ounty officers, before assuming the duties of the office.. " (Emphasis supplied.)
The language of the above statute is clear in stating that "Each member . whether ex-officio or appointed ... shall ... take the oath of office . before assuming the duties of the office."
It cannot bE: seriously contended that the General Assembly at the .time that it enacted the above statute did not have knowledge of the fact that the ex-officio members had taken the oath of their respective county offices or would take such oath before assuming their respective county offices.
To be eligible as an ex-officio member of the County Board of Health, a person must have already become one of the county officers enumerated in the above statute. To become a de jure officer, a person must have takE;n the proper oath of his office.
It is my personal view that since the GE;neral Assembly did not make an exception and exempt the ex-officio members from taking the oath as provided by the statute, but on the other hand expressly providE:d that they should, it intended for all members including ex-officio members of the County Board of Health to take such an oath bE:fore assuming the duties of the office as a member of the County Board of Health.
PUBLIC HEALTH-Pre-Marital Law (Unofficial) Where applicant is unable to pay for examination, certificate may be obtained without charge from local health officer or county physician.
March 24, 1949 Honorable Martin Holt Ordinary, Ware County
I am writing you this letter as a result of our conversation several days ago in regard to the Pre-marital Bill.
ThE: last paragraph of Section 1 reads as follows: "If applicant is unable to pay for such examination, certificate without charge may be obtained from the local health officer or county physician." I believe that this will answer your question regarding persons who are unable to pay for their examinations.
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Inasmuch as the Attorney General is prohibited by law from rendering official opinions to persons other than the Governor and the heads of the various State Departments, this letter must be considered as merely my personal view on this matter.
PUBLIC HEALTH-Pre-Marital Law The requirement of examination is a prerequisite to issuance of license, and if license is issued before effoctive date of the law no examination is required.
July 14, 1949 Hon. E. L. Webb, Associate Director Division of Laboratories Department of Public Health
I am pleased to acknowledge your letter of July 9th, in which you request an official opinion on the quostion of whether under the State Premarital Law which becomes effective August 25, 1949, a marriage can be legally performed after that date where the liconse has been secured previous to that date without a medical examination of the applicants.
The statute commonly referred to as the Premarital Law, is found in the Acts of 1949, pages 1054-1057. Section I of this law reads in part as follows:
"That each and every person both male and female, on whose behalf application for a marriage license is made, must present to the ordinary, who shall file same, a certificat: signed by a qualified physician, licensed to practice medicine and surgery in any State or United States territory, stating that the applicant for a marriage license has been given an examination, ..."
It is clear from the above provision of law that in ordor to secure a marriage license after the effective date of this law, it is necessary to present to the ordinary a properly signed certificate showing that the applicants are not infected with a communicable disease. This is a condition precedent to the granting of a marriage license by the ordinary.
If a bona fide marrige license has been secured from the ordinary previous to thE:' effective date of the above law, it would be unnecessary for them to secure medical certificates even though the actual marriage ceremony was performed within a reasonable time thereafter. This law does not require the applicants to present a medical c~rtificate to the marrying officer, but rather that such medical certificates must be presented to the ordinary prior to the issuance of a marriage license. It would naturally follow that if the marriage license was secured prior to the eff6ctive date of the Premarital Law and both of th& parties were acting in good faith, they could subsequently be married within a reasonable time without the necessity of securing medical certificates.
Seeton 8 of this law provides that the same shall become effective and in force six months from the date of its passage and approval. The Act was approved February 25, 1949.
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PUBLIC HEALTH-P.-e-Marital Law (Unofficial) 1. A Florida certificate, which is substantially identical to the Georgia certificate, is acceptable.
.July 27, 1949 Mrs. C. E. Touchstone, Jr.
As you know, we advisE:d you that the new premarital blood test examination law would become effective in Georgia on August 25, 1949.
It will be all right if you have the blood test made by a Florida doct01' and have him fill in a Florida form which is almost identical to the Georgia forms to be used.
However, I regret to inform you that both contracting parties must appear in person at the Ordinary's office in the Georgia county in which thE:y expect to be married. If the man is twenty-one and the girl is past her eighteenth birthday, they may be married immediately after procuring thE: license, which takes about fifteen minutes. If the girl is under eighteen, the license must be posted for three days or her parE:nt or parents must appear with her to say she has their permission to marry.
PUBLIC HEALTH-Pre-marital Law (Unofficiail) The certificate of a physician of another State is acceptable if made on the form prescribed by the Department and when accompanied by satisfactory certificate from laboratory making tests.
Judge C. T. Conner
August 17, 1949
Pursuant to your request that I advise you if a certificate from a licensed physician of another State of the United States would be acceptable under the provisions of the Pre-Marital Act of 1949, Georgia Laws 1949, p. 1054, I am pleased to advise that the stated Act provides in Section I thereof:
"That each and every person both male and female, on whose behalf application for a marriage license is made, must present to the ordinary, who shall file same, a certificate signed by a qualified physician, licensed to practice medicine and surgery in any State or United States territory, stating that the applicant for a marriage license has been given an examination, including a standard serologic test for syphilis, and that, in the opinion of such examining physician, the applicant is not infected with syphilis, or if so infected, is not in a stage of that disease which is or may become communicable.
"The certificate shall be accompanied by a statement from the person in charge of an approved laboratory making the test, or from some other person, authorized to make such reports, setting forth the name of the test, the date it was made, the name and address of the physician to whom the test was sent and the name and address of the person whose blood was tested.
"The physician's examination including a standard serologic test for syphilis of both the man and woman applying for a marriage license shall be made within thirty (30) days prior to the application for such license.
"If applicant is unable to pay for such examination, certificate without charge may be obtained from the local health officer or county physician."
"Section 2. For the purpose of this Act a standard serologic test shall be a test for syphilis approved by the Georgia Department of Public Health, and
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an approved laboratory shall be a laboratory approved by the Georgia Department of Public Health. Provided, that, any other State department of public health, United States Public Health service, United States Army or Navy laboratory or laboratory approved by these agencies shall be considered approved for the purpose of this act.
"The certificate of a physician and the statement from a person in charge of an apprdved laboratory or from a person authorized to make reports for such laboratory shall be on a form to be provided and distributed by the Georgia Department of Public Health."
It is my view that if a qualified physician licensed to practice medicine and surgery in any State of the United States or territory thereof makes and signs a certificate on the form prescribed by the State Department of Public Health of the State of Georgia, that such person examined has been given an examination and the test prescribed in Section I above cited, it would be acceptable under the provisions of the 1949 Pre-Marital Act when accompanied by a statement from the person in charge of an approved laboratory making the test or from some other person authorized to make such report, setting forth the name of the test, the date it was made, the name and address of the physician to whom the test was sent and the name and address of the person whose blood was tested.
Under the law, I can only give opinions to the Governor and to the heads of the various Departments of the State Government upon matters in which the State is involved and the information given herein is to be considered unofficial and my personal views on the matter.
PUBLIC HEALTH-Pre-marital Law (Unofficial!) The certificate of an osteopath is not acceptable.
Honorable J. Forest Johnson Ordinary of Troup County
September 20, 1949
I am pleased to acknowledge your letter of September 12, 1949, relating to the premarital examination certificate under House Bill No. 155, Georgia Laws 1949, page 1054.
Under the law I can only give opinions to the Governor and to the heads of the State departments on matters in which the interests of the State are involved. However, I am always glad to be of assistance to the county officials whenever I can without invading the province of the County Attorney.
Section 1 of House Bill 155 provides in part:
"That each and every person both male and female, on whose behalf application for a marriage license is made, must present to the ordinary, who shall file same, a certificate signed by a qualified p,hysician, licensed to practice
medicine and surgery in any State or United States territory, stating that the applicant for a marriage license has been given an examination, including a standard serologic test for syphilis, and that, in the opinion of such examining physician, the applicant is not infected with syphilis, or if so infected, is not in a stage of that disease which is or may become communicable...."
In the case of Mabry et al. v. State Board of Examiners in Optometry et al.,
190 Ga. 751, the Supreme Court of Georgia held that the "words 'the same as
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physicians of other schools,' do not place osteopaths in the same class with physicians and surgeons duly licensed to practice medicine."
I trust that the above information will be of benefit to you. Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be. accepted as unofficial and personal.
PUBLIC HEALTH-Pre-Marital Law It is the duty of the Department of Public Health to distribute certificate forms.
October 13, 1949 Honorable M. S. Garwood Ordinary, Seminole County
I am in receipt of your letter of October 3, 1949 in which you desire to know whether or not the Ordinary's office could be furnished the forms of the certificates as provided or in the Pre-Marital Examination Act.
As I pointed out to you in my letter of September 23, 1949 these forms must be provided and distributed by the Georgia Department of Public Health. I believe that under the terms of the Act it is the duty of the Health Department to distribute these forms and I suggest that if you are in need of these forms that you write the Health Department and request that they send them to you.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
PUBLIC HEALTH-Sanitary Regulations (Unofficial) The provisions of the mattress sanitary regulations do not apply to establishments engaged exclusively in renting mattresses to individuals for baby beds where they are not sold and where no renovating, remaking, etc. is done.
Dr. T. F. Sellers, Director State Department of Public Health
June 27, 1949
I have your letter of June 20 concerning the mattress sanitary regulations, Act No. 472, (Georgia Laws 1937, page 719, as codified in Chapter 88-13 of the Georgia Code Annotated Supplement).
You desire to know what application, if any the above law has to a business house renting mattresses for baby beds to individuals.
The caption of Act No. 472 (Georgia Laws 1937, page 719) stated, among other things, that it was an Act to improve the sanitary conditions of the manufacture of mattresses and bedding, etc.; to provide an inspection or license fee for persons engaged in making, remaking, or renovating mattresses; to provide that persons receiving a mattress for renovation or storage shall attach thereto a tag showing date of receipt, name and address of owner; to provide for a tag and an adhesive stamp to be attached to mattresses made, remade, renovated or sold; and for other purposes.
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Section 3 of the Act provides, in part, that no person, except for his own use, shall make, remake, or renovate mattresses until he has secured a license from the Board of Health and paid a license fee of $25.00 therefor.
I am of the opinion, therefore, that if a business house to which your letter has reference makes, remakes, or renovates any of the mattresses which it rents, that it would be required to secure a license in accordance with the terms of the Act. It would follow, therefore, that any business house, although primarily engaged in renting mattresses, if it also made, remade, or renovated mattresses, then that business house would have to comply, insofar as the making, remaking, or renovating of mattresses was concerned, with Section 4 of the Act.
If a business house has made, remade, or renovated one of the mattresses which it rents, or if it sells a mattress, the business house must comply with Sections 6 and 7 of the Act. If a business house which rents mattresses does any of the things enumerated in Section 9 of the Act, that is, makes, remakes, renovates, or sells mattresses, or if it is an establishment where material, which is used in the manufacture of mattresses, is mixed, worked, or stored, then the Board of Health is authorized and empowered in the enforcement of that Act to inspect any such business house, as provided in Section 9 of the Act.
It is unfortunate that the 1937 Act does not specifically provide for the control of business houses which are solely in the business of renting mattresses without making, remaking, renovating or selling them, as such houses would seem to escape the provisions of the Act. I trust, however, that you will find that most of the business houses which rent mattresses also either make, remake, renovate them between each renting, or sell them, or, at least, are places where that is done or where material which is used in the manufacture of mattresses is mixed, worked, or stored, for in these instances it would seem that you could bring these business establishments to some extent under the provisions of th<~ 1937 Act, as I have outlined above.
PUBLIC HEALTH-State Board of Eugenics (Unofficial) Sets out provisions affecting State Board of Eugenics.
September 12, 1949 Harry A. Pearse, M. D.
I am pleased to acknowledge your letter of September 10, 1949, and to advise that Georgia has a State Board of Eugenics, created under the Acts of 1937, page 414, composed of the Director of the State Board of Social Security, the Director of the State Board of Health, and the Superintendent of the Milledgeville State Hospital. This last institution is the State mental hospital.
It is the duty of the Board to pass on applications for eugenic sterilization made in accordance with the provisions of the Act, and to keep a record of such sterilizations, which shall not be open to public inspection except for such purposes as the Board may approve.
The Act provides: "When it shall appear to the superintendent, manager, or director of any State home or hospital for mental or physical disease, or any State colony or institution for the care of the mentally or physically defective, deficient, or diseased, or the warden or superintendent of any State prison or penitentiary, correction school or reformatory, detention home, or camp, that a patient or
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inmate under the care of or in such institution, would be likely, if released with-out sterilization, to procreate a child, or children, who would have a tendency to serious physical, mental, or nervous disease or deficiency, said superintendent ,or manager, after a consultation with his medical staff or any medical authority, shall submit to the State Board of Eugenics a recommendation that a surgical ,operation be performed upon said person for the prevention of parenthood. Such operation shall be a vasectomy for males, and a salpingectomy for females, or some similar operation that would not unsex the patient or inmate thereof."
Other provisions of the Act provide that the recommendation for sterilization shall be in writing, accompanied by certified statement containing the history of the patient and setting forth the particular reasons why sterilization is recommended.
The Act further provides that notice of the application by Registered Mail must be given to the legal representative or next of kin of the patient or inmate, and a copy to the Solicitor General of the Superior Court of the county from which the patient or inmate was committed, in cases where no near relative is known and no legal guardian has been appointed, and in such instances it is the duty of the Solicitor General to protect the rights and best interests of the patient or inmate.
The Act further provides for protest hearings and evidence and for appeals to the Superior Court from any decision of the Eugenics Board. On appeals to the Superior Court, the proceedings constitute a trial de novo, and upon application of either party, shall be heard before a jury. Appeal from the Superior Court may be made to the appellate courts of the State, and such .appeals automatically stay the proceedings under the order of the State Board of Eugenics until the appeal is finally determined.
The Act contains other detailed requirements usually incident to such legislation.
I am advised by the State Library that they exchange copies of the laws of Georgia with the State Law Library of Michigan at Lansing, Michigan. If you should desire to read the complete text of the law, it will be found in the Georgia Laws of 1937, page 414 and the amendments in the Georgia Laws of 1943, page 202, and also codified in the 1933 Annotated Code of Georgia, pocket supplement, in Chapter 99-13, Sections 99-1301 - 99-1320. It is most likely that you would find a copy of the 1937 laws and the amendments of 1943 in the Acts of 1943 at -one of the libraries in Detroit which have legal reference departments.
Since my official authority is restricted by law to legal matters relating to i;he State Government, my views in this letter must be accepted as unofficial ;and personal.
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PUBLIC HEALTH-Vital Statistics An osteopath is not a "physician" ana is therefore not qualified to cez-tify to cause of death.
August 26, 1949 Dr. T. F. Sellers, Director State Department of Public Health
I am pleased to acknowledge your letter of August 11, 1949 requesting my opinion as to whether or not certificates of death signed by osteopaths may be accepted by the State Department of Public Health, and calling to my attention Section 84-1211 of the Annotated Code of Georgia.
Section 84-1211 of the 1933 Annotated Code provides: "Osteopathic physicians shall observe and be subject to all State and municipal regulations relating to the control of contagious diseases, the reporting and certifying of births and deaths, and all matters pertaining to public health, the same as physicians of other schools, and such reports shall be accepted by the officers or department to whom the same are made." In the case of Mabry e't al. v. State Board of Examiners in Optometry et al. 190 Ga. 751, the Supreme Court of Georgia held: "Words, 'the same as physicians of other schools', do not place osteopaths in same class with physicians and surgeons duly licensed to practice medicine". It should be noted that Section 84-1211 comes from the Act of 1909, pp. 123-128, and provides that osteopathic physicians shall observe and be subject to all State regulations relating to the reporting and certifying of births and deaths, and such reports shall be accepted by the officers or department to whom the same are made. Therefore, it is essential to examine the State statutes regulating the reporting and certifying of deaths to ascertain who is required or allowed to certify in cases of death of a person. Section 88-1116, Pocket Supplement, provides: "(1) The person in charge of interment shall file, with the local registrar of the district in which the death occurred or the body was found, a certificate of death within the time prescribed by the Board. "(2) In preparing a certificate of death, the person in charge of interment shall obtain and enter on the certificate the personal data required by the Board from the persons best qualified to supply them. He shall present the certificate of death to the physician last in attendancE:: upon the deceased or to the coroner having jurisdiction who shall thereupon certify the cause of death according to his best knowledge and belief. "(3) Thereupon the person in charge of interment shall notify the appropriate local registrar. " (4) Deaths from criminal violence, or by a casualty, or by suicide, or suddenly while in apparent health, or when unattended by a phy.sician, or in any suspicious or unusual manner, shall be reported forthwith to the county coroner, w;ho shall execute a certificate of death upon a form prescribed by the Board." (Emphasis supplied.) The above Code Section is a part of the Act of 1945, pp. 236-237, which wa.s enacted for the purpose of establishment of a system for compiling and keeping vital statistics. Section 88-1101 setting forth the purpose and object of the law provides: "The object and purpose of this Chapter is to provide a complete and comprehensive vital statistics law for the State of Georgia."
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Section 88-1102, giving the definitions of various words, used in this complete and comprehensive vital statistics law of 1945, provides in part:
" (6) 'Physician' means a person legally authorized to practice medicine in this State."
There can be no doubt that the General Assembly intended to provide a complete and comprehensive vital statistics general law for the State since it is plainly stated in the Act itself.
The 1945 Act specifically provides in Section 88-1102 that the word "physician" means a person legally authorized to practice medicine in the State of Georgia.
Section 88-1116 specifically provides that the person in charge of interment shall present the certificate of death to the physician last in attendance upon the deceased or to the coroner having jurisdiction.
This section also provides that deaths when unattended by a physician shall be reported to the county coroner who shall execute a certificate of death upon a form prescribed by the State Board of Health.
It is clear that the General Assembly, in using the words "physician last in attendance upon the deceased" and defining the word "physician" to mean a person legally authorized to practice medicine in Georgia in the Act, meant to provide that only a person legally authorized to practice medicine in Georgia would be authorized to certify the cause of death as the last attending physician :and that when there was no last attending physician as defined in the Act, then the county coroner would be authorized to execute a certificate of death upon a form prescribed by thE: State Board of Health.
It is my opinion that the Vital Statistics Act of 1945 (Ga. Laws 1945, pp. 236-237) is a complete and comprehensive law covering the subjects of births and deaths, and the last expression of the General Assembly on the subject.
It is my further opinion that only the physician last in attendance upon the deceased that would be authorized to certify to the cause of death under the provisions of the 1945 Act would be a physician as defined in Code Section 88-1102, as a physician legally authorized to practice medicine in this State.
It is my further opinion based upon the authority in the case of Mabry et. al. v. State Board of Examiners in Optometry et al. that a person licensed to practice osteopathy in this State is not a physician as defined in Section 88-1102 of the 1933 Annotated Code, Pocket Supplement.
PUBLIC HEALTH-Water Improvement Advisory Committee
Members of the Committee appointed from the House and Senate are entitled only to actual expenses incurred in the performance of their duties as such members.
Honorable B. E. Thrasher, Jr.
March 21, 194\:1
State Auditor
I am in receipt of your letter of recent date in which you request an opinion
regarding Section 4 of House Resolution No. 80-540-a which resolution sets up
the Water Improvement Advisory Committee. Section 4 reads as follows:
"Expenses.-The members appointed to this Committee from the House of
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Representatives and the Senate shall be entitled to receive only actual expense incurred while performing duties as a member of this Committee."
You will note that Section 4 says nothing with regard to the members of said committee other than those appointed from the House of Representatives and the Senate. It does say that those members appointed from the House of Representatives and the Senate shall be entitled to receive only actual expenses.
No special appropriation was set up to carry out the provisions of this resolution. Therefore, we must of necessity be governed by the appropriation as set out in the general appropriation bill. The general appropriation bill says that members of the Legislative Committee shall receive actual travel expenses.
It is my opinion that those members of the State Water Improvement Advisory Committee who were appointed from the House of Representatives and the Senate are entitled to receive their actual travel expenses incurred while performing their duties as members of this committee.
The term "actual travel expenses", includes the cost of hotels, meals and transportation.
It is within the discretion of the Chairman of the committee to determine what trips and what work shall be necessary for proper functioning of the committee in their job of complying with the provisions of the resolution.
The expenses to be paid as set out above shall be paid from funds appropriated from the Legislative branch of the Government.
PUBLIC PROPERTY-Federal-owned Consent of the Governor to the use of Federal-owned property for military duty by Tennessee National Guard is prerequisite to such use.
March 25, 1949 Brig. Gen. Ernest Vandiver, Jr. The Adjutant General
I am pleased to acknowledge your letter of March 2, 1949 in which you requested an opinion relative to the State of Georgia giving its consent to National Guard Troops of the State of Tennessee for the purpose of using the Federal owned Catoosa Rifle Range.
Section 86-1412 of the Georgia Code Annotated states: "Foreign forces, entry into State.-No armed militia force from another State, Territory, or District shall be permitted to enter the State, for the purpose of doing military duty therein, without the permission of the Governor,. unless such force is part of the United States Army or is acting under authority of the United States." In view of the above, it is my opinion that it is certainly not mandatory that the Governor grant the State of Tennessee the right of entry to use this rifle range, and, further, it appears that the State of Georgia's consent is a. condition precedent to the lease between the Federal Government and the State of Tennessee. It is my suggestion that you inform the State of Tennessee that the State of Georgia is not consenting to such an agreement unless they can satisfactorilY,' work out with you the joint use of the Catoosa Range.
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PUBLIC PROPERTY-Improvements The State may not without further legislative authority and appropriation develop property to which it does not have title.
May 20, 1949 Honorable A. N. Moye, Director Department of State Parks State Division of Conservation . This acknowledges receipt of a letter from your department under date of May 16, 1949 and signed by Mr. John M. Mann, Chief Engineer, in which you inquire as to whether or not your department would be authorized in making expenditures for permanent improvements of Fort Yargo property near Winder, Georgia.
I am enclosing herewith a copy of an opinion dated September 15, 1945 concerning the same question that you now refer to.
In my opinion the status of this property has not changed since the opinion was rendered September 15, 1945. Therefore, in consideration of the above stated facts, I am still of the opinion that the State cannot without further legislative authority and proper appropriation of money by the General Assembly proceed to develop property to which the State does not have title.
PUBLIC PROPERTY-Restrictions o,n Alienation The State may acquire real property subject to a restriction against alienation, but any conveyance by the state must of necessity also be subject to such restriction.
April 18, 1949 Honorable Jack M. Forrester, Director State Department of Public Welfare
There has been referred to me a letter dated March 29, 1949, in which Mr. T. A. Dechman of the War Assets Administration has asked your opinion as to the effect of the condition that the Camp Toccoa properties can only be used for public purposes. Mr. Dechman pointed out that this condition ran in perpetuity, and he thought it possible that the State might run into some difficulty in obtaining authority or funds with which to purchase and maintain the Camp Toccoa installation in view of the perpetual restriction that the land be used only for public purposes.
In my opinion, there is nothing in the law which would prevent the State from purchasing and maintaining land subject to such a restriction. Indeed, as a general proposition, the State may not expend its funds except for public purposes.
On the other hand, I feel constrained to point out that in the event the State ceased to have use for this property, it could only be sold to a purchaser who would use the land for public purposes, and that because of this, the resale value of the Camp Toccoa property might be very little.
The question as to whether or not the State desires to purchase property with a limited resale value, is, of course, not a matter for the Law Department.
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PUBLIC PROPERTY-Sale State-owned property used as State Patrol Barracks may not be sold without legislative authority where unsuitability for present use is not such as to constitute it "unserviceable."
August 16, 1949 Honorable J. Frank Jones Captain Georgia State Patrol Treasurer and Disbursing Officer
This will acknowledge receipt of your letter of recent date in which you state that the State of Georgia and the County of Thomas and the City of Thomasville own certain real estate jointly in or near Thomasville, Georgia, which is now being used as the State Patrol barracks, but which, you state, is unsuited for present Patrol use.
You further state that the owners are now considering selling this property with the idea of purchasing or erecting a new building suitable for present needs.
You state that you have been unable to find any authority that would authorize the State to sell this property and you ask my advice in this matter.
This office has made several rulings to the effect that state property cannot be leased, sold or otherwise disposed of without legislative authority. The exception to this rule is stated in Section 91-804 of the Code, which reads as follows:
"When any public property shall become unserviceable, it may be sold or otherwise disposed of, by order of the proper authority, and an entry of the same shall be made in said book, and the money received therefrom shall be paid into the treasury."
I am of the opinion that the building in question cannot properly be said to have "become unserviceable" within the purview of Section 91-804.
After a careful consideration of the subject under discussion, I am of the opinion that the property in question should not be sold or otherwise disposed of without a proper act of the Legislature authorizing the same.
PUBLIC PROPERTY-State Hotel Prop,erties Com,mission Minutes of Commission permitting expenditure during 1949 on leased hotel properties by lessee to be credited on required expenditures for 1950 i:; sufficient authorization without redrafting the lease.
May 3, 1949 Hon. Walter R. McDonald, Chairman Georgia Public Service Commission
I am pleased to acknowledge your recent inquiry in which you state that the State Hotel Properties Commission has unanimously agreed for the lessee of the Plaza Hotel to expend funds for permanent improvements which will require the expenditure of $2,000.00 for the present year, and that such sum shall be deemed and considered as a credit on the amount to be spent under the terms of the lease in 1950.
It is my opinion that the minutes of the State Properties Commission permitting such an expenditure for the current year and agreeing to give a credit for any amount spent above $2,000.00 on the sum to be expanded next year, is
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a sufficient authorization, and that it is unnecessary to formally redraw the lease dated May 22, 1947. The question of permitting a temporary adjustment of expenditures to be made by the lessee from one year to another is a matter which addresses itself to the sound discretion of the State Hotel Properties Commission, provided such discretion is exercised within the purview of the terms of the written contract.
PUBLIC PROPERTY-Transfer Interdepartmental transfer of public property may be effectE:d by executive order of Governor.
March 29, 1949 Brig. General Ernest Vandiver, Jr. The Adjutant General
The Honorable Herman E. Talmadge has referred your letter of March 3, 1949 relative to the proper procedure for transferring the old penal building located at Milledgeville, Georgia to the Military Department.
I am assuming that the State has a fee simple title to the old penal building and surrounding grounds. On this assumption, the transfer of title to the Military Department is merely an administrative matter and in my opinion can be effectively conveyed by an executive order signed by the Governor. I have enclosed a copy of such an executive order for your use if you so desire.
When the executive order is signed and the property is vested in the Military Department, it appears that further negotiations with the Federal Government should be taken through the Armory Commission, as provided for under Code Section 86-908.
PUBLIC REVENUE-Ad Valorem Tax The exemption of agricultural products from taxation is constitutional on the theory that they are not "property".
January 6, 1949 Mr. Q. L. Garrett
I am pleased to acknowledge your letter of recent date in regard to the constitutionality of Section 1 of the Georgia Laws of 1945, page 265, which reads as follows:
"All agricultural products in Georgia shall be exempted from taxes and licenses, except as herein stated."
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and the heads of the various State departments; therefore, this information is to be considered purely of a personal nature and is not binding on anyone.
This question seems to have been settled by the Supreme Court in the case of City of Atlanta, et al vs. Georgia Milk Producers Confede'ra,tion, 187 Ga. 117, paragraphs 3 and 4, which reads as follows:
"3. It follows that sales of agricultural products not being property within the meaning of that term as used in Art. 7, sec. 2, par. 1 (Code Section 2-5001) of the constitution of this State, the act of 1873 (Section 5-603) exempting such sales from taxation is not inhibited by art. 7, sec. 2, par. 4 (Section 2-5005)
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of the Constitution, declaring 'All laws exempting property from taxation other than the property herein enumerated shall be void.'
"4. Nor is said act violative of art. 7, sec. 2, par. 1 (Section 2-5001), declaring that. taxation shall be uniform upon the same class of subjects. Whether or not such provision would have application at all where it is not shown that the act attacked or any other act levied or permitted the levy of a tax on sales in general, but only that an exemption of certain sales from taxation is allowed, we do not decide. If applicable, however, the legislature has authority to classify as to taxes not on property within the meaning of the constitution, and to be uniform such taxation need not be universal. Certain objects may be its subjects and others may be exempted from its operation. All the law requires is that classification be reasonable. A classification exempting the sale of agricultural products from taxation is reasonable.''
The above decision has reference to Paragraph IV, Article VII of the Constitution of 1877, codified as Section 2-5005 of the 1933 Code. This identical section is incorporated as the last paragraph of Paragraph IV, Article VII of the Constitution of 1945, codified as Section 2-5404.
PUBLIC REVENUE-Ad Valorem Tax (Unofficial) Agricultural products are exempt from taxation only for one year after their production.
Honorable Cecil V. Stanton
February 14, 1949
Attorney At Law
I am pleased to acknowledge your letter of January 29, 1949, and regret
that there was a misunderstanding by my office of the inquiry made by Mr.
Garrett relative to the taxability of agricultural products in this State.
As you know, the Attorney General is prohibited by law from rendering
official opinions to anyone except the Governor and the heads of the various
State departments; therefore, this information is to be considered purely of a
personal nature and is not binding on anyone. The Constitution of 1945 provides that all property is taxable except that
which is specifically exempted by the Constitution. In other words, the Legis-
lature has no authority to enact into law an exemption unless said exemption is provided for by the Constitution.
Section 2-5404 of the Georgia Code sets forth the constitutional exemptions,
and relative to farm products states:
"The General Assembly shall further have power to exempt from taxation, farm products, including baled cotton grown in this State and remaining in the
hands of the producer, but not longer than for the year next after their pro-
duction."
It is my opinion that the above constitutional exemption simply means that
agricultural products in the hands of the producer or the farmer are exempted
for a year after their production. Any other exemption of agricultural products
would be void.
Thus, it is my opinion that the pecans referred to in your letter stored with
the processor are taxable under the ad valorem property statutes.
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PUBLIC REVENUE-Ad Valorem Tax No industry is entitled to exemption from ad valorem tax except those receiving it under the 1877 Constitution.
February 28, 1949 Honorable R. C. Johnson Attorney at Law
This will acknowledge receipt of your letter of February 19, 1949 inquiring about exemption from taxation of a corporation engaging in canning fruits and vegetables for the first five years of business.
The Attorney General cannot under the law render official opinions except to the Governor and heads of the various departments of State. However, I am glad to give you the following information.
Under the Constitution of 1&'77 the Legislature was empowered to make provisions for the exemption from taxation of certain industries for a period of five years, as provided under Section 2-5003 of the Code of Georgia of 1933, Annotated. The canning of fruits and vegetables was not enumerated among the industries which were to be exempt. The Constitution of 1945 does not make provisions for the exemption of industries as contained in the Constitution of 1877, so that even those that were included prior to the adoption of the new Constitution are not exempt from the payment of ad valorem taxes where the exemption obtained under the old Constitution, and enabling act pursuant thereto, has now expired.
You might be interested in reading the unofficial opinion to Honorable Frank M. Gleason, dated September 10, 1946, published in the Opinions of the Attorney General 1945-1946, relating to the subject matter. The published opinions will be available to you in the office of the Ordinary or the Clerk of your Superior Court.
PUBLIC REVENUE-Ad Valorem Tax; Motor Vehicle License Tax Motor vehicles owned by housing authority and used exclusively for governmental functions are exempt from property tax but pay motor vehicle license tax.
Mr. W. L. Joiner, Assistant Director Motor Vehicle License Unit
March 3, 1949
Subject: Annual fees for licensing of the operation of motor vehicles owned by Housing Authorities created under the Housing Authority Law of 1937, as amended.
The Housing Authority Law of 1937 (Ga. Laws 1937, page 210, 230), as amended, provides under Section 21 at page 230, as follows:
"Tax Exemption and Payment in Lieu of Taxes. The property Qf an authority is declared to be public property used for essential public and governmental purposes and not for purposes of private or corporate benefit and income, and such property and an authority shall be exempt from all taxes and special assessments of the city, the county, the State or any political subdivision thereof; provided, however, that in lieu of such taxes of special assessments, an authority may agree to make payments to the city or the county or any such political subdivision for improvements, services and facilities furnished by such
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city, county, or political subdivision for the benefit of a housing project, but in no event shall such payments exceed the estimated cost to such city, county, or political subdivision of the improvements, services or facilities to be so furnished."
A Housing Authority created under the provisions of the Housing Authority Law constitutes a public body corporate and politic exercising public and essential governmental functions.
The exemption provided under the Housing Authority Act is an exemption of property tax. Annual fee for the licensing of the operation of a motor vehicle is a maintenance tax and not a property tax and is required of State owned vehicles, as well as those belonging to municipalities and all political subdivisions of the State. Therefore, if the automobiles are owned by a Housing Authority created under the Housing Authority Law and are used exclusively for governmental functions, the license fee for such vehicles would be as provided under Section 92-2902 (16), as follows:
"(16) State or municipal motor vehicle. For each motor vehicle owned by the State, any municipality, or other political subdivision of the State, used exclusively for governmental functions, the sum of $3."
PUBLIC REVENUE-Ad Valorem Tax A value placed by arbitration on property is effective only for the year as to which arbitration was had.
May 6, 1949 Mr. R. H. Howard Tax Assessors Board, Houston County
I am pleased to acknowledge your letter in which you asked my opm10n relative to how long arbitration of a tax assessment on real property is effective, or, in other words, as I understand your problem, the Tax Assessors raised the valuation of a particular piece of property and the matter was arbitrated several years ago and the arbitration held against said increase in valuation.
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and heads of the various departments of the State. Therefore, this information is to be considered purely of a personal nature and is not binding on anyone.
Section 92-6912 of the Code deals with arbitration and it is my opinion that such arbitration only applies for the current year in which the property was arbitrated. In other words, let us say that the property was arbitrated in 1947 and the arbitration held against any increase in valuation. In 1948 the taxpayer had a paved road constructed in front of his property and he added a room and garage to the property. You would be perfectly justified in 1948 to raise his assessment or lower his assessment, as the case may be.
Of course, this matter works both ways. Suppose the property was arbitrated in 1947; the arbitration held against any increase in valuation and set $5,000 as the fair market value of the real estate. In 1957 I dare say the taxpayer would not be willing to return the property at the 1947 valuation due to ten years depreciation. Thus, arbitration is good only in the year in which the property is arbitrated.
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PUBLIC REVENUE-Ad Valorem Tax Chickens comprising a chicken business are to be returned for State and County taxes.
May 10, 1949 Honorable B. L. Dalton, Chairman Banks County Board of Tax Assessors
This will acknowledge receipt of your letter of May 6th in which you ask whether or not chickens comprising a chicken business are subject to be returned for State and county taxes.
The Attorney General cannot under the law render official opinions to anyone except the Governor and the heads of the various departments of State. However, I am glad to give you the following information.
The law provides that all property shall be returned for taxation at its fair market value (Section 92-5701 of the Code of Georgia of 1933) , and Section 92-101 of the Code provides that "all real and personal property, whether owned by individuals or corporations, resident or nonresident, shall be liable for taxation, except as otherwise provided by law."
"Personal property," in its broad and general sense, includes everything which is subject of ownership not coming under the denomination of real estate, and the term "real or personal property" is in common used to denote property of all kinds.
As you will note, the Georgia law provides that all property shall be liable for taxation, except as otherwise provided by law, and that all property Rhall be returned for taxation at its true market value, which would, of course, include the return and taxation of chickens comprising a chicken business.
PUBLIC REVENUE-Ad Valorem Tax 1. Taxes on property of which last grantee is unknown and which is not on tax digest may be taxed by issuance of fi. fa. in rem. 2. A covenant in the last recorded deed that property was to be used for school purposes does not bind the State so as to avoid taxation.
Honorable W. Harvey Atkinson, Director Property and License Tax Unit
May 24, 194B
I am pleased to acknowledge reecipt of your letter of May 20, 1949, in which you requested an opinion as to the manner Honorable C. H. Adams, Tax Commissioner of Taylor County, can dispose of and have placed upon the tax digest of Taylor County one certain lot of land that has not appeared on the tax digest of said county and of which the grantee in the last deed conveying this property is unknown, and any and all of his heirs are unknown by the Tax Commissioner of Taylor County.
The law provides that property of this kind, although it cannot be classified as wild land, may be proceeded against for the purpose of collecting the taxes due thereon, that the tax collector or commissioner of the county in which the land is located may issue a tax fi. fa. in rem. Where a fi. fa. for taxes is issued against property in rem, there can be no excessive levy.
Whether property is wild land or seated and improved land depends upon the appearance of the land at the present. In any event, whether the property
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be classified by the taxing authorities of the county in which it is located as wild and unimproved land or as improved land where the owner is unknown and it is impossible to issue a tax fi. fa. in personam, the taxing authorities of the county where the property is located may proceed against said property for the purpose of collecting taxes due thereon in r6m.
The fact that the last deed conveying the property in question contained a covenant or provision that said property was to be used for school purposes does not prohibit the State and county from collecting any and all tax due on said property, as the county and State are not bound by covenants contained therein for the purpose of exempting property from taxation.
The proper proceeding against the property in question would be to have the tax assessors of Taylor County assess the property in question, and after this, the Tax Commissioner would be authorized to issue a fi. fa. against said property for the past due taxes for each year that is not barred by the statute of limitations.
PUBLIC REVENUE-Counties, Taxing Power (Unofficial) 1. A county may not levy excise taxes on gasoline. 2. Standing timber is taxed as part of the realty and is not susceptible of separate tax.
February 25, 1949 Honorable H. C. Summerour
Pursuant to our conversation today relative to questions as to whether counties could add an excise tax to gasoline for county revenue and whether counties could make a separate tax on timber, I respectfully call your attention. to Code Section 92-1403 (G) which is self-explanatory.
"(G) And Provided further, that no county, municipal or other political subdivision shall levy any fee, license, privilege, or excise tax or taxes measured or computed in gallons upon the sale, purchase, storage, receipt, distribution, use, consumption, or other disposition of motor fuel andjor kerosene or other like products of petroleum: Provided, however, that nothing herein shall prevent the levying by municipalities of reasonable flat license fees or taxes upon the business of selling motor fuel andjor kerosene or other like products of petroleum at wholesale or retail."
The courts have ruled for some time that standing timber constitutes a part of the realty; therefore, when ad valorem taxes are assessed against a piece of property, they include the standing timber since it is merged and becomes a part of the real estate. Consequently, it is my opinion that standing timber cannot be taxed separately from the regular ad valorem taxes.
As you know, I am prohibited from rendering official opinions to anyone except the Governor and the various Department Heads. Therefore, anything in this letter shall be treated as personal and not binding on anyone.
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PUBLIC REVENUE-Counties, Taxing Power of (Uno.fficiaJI) Where adequate provision is not made by Legislature, a county may levy a tax for fire protection to supplement State funds.
June 28, 1949 Hon. Guyton DeLoach, Director Georgia Forestry Commission
I am pleased to acknowledge your letter of June 25th, in which you request an opinion relating to the authority of the various counties of the State to levy a tax for fire protection.
Section 2-5701 of the State Constitution provides in part as follows: "Taxing power of counties.-The General Assembly shall not have power to delegate to any county the right to levy a tax for any purpose, except: "12. To provide for fire protection of forest lands and for the further conservation of natural resources." Pursuant to the constitutional provision above set forth, the Legislature passed the following enabling statute: "Section 92-3701. County taxes may be levied and collected for the following purposes : "12. To provide for fire protection of forest lands and for the further conservation of natural resources." It is clear that the above quoted provision of the Constitution, together with the enabling act herein set forth, grants ample authority to the counties of this State to levy and collect county taxes for the purpose of providing fire protection to the forest lands, and for the further conservation of their natural resources. I also call your attention to Section 3 of an Act approved February 23, 1949, (Ga. L. 1949, pp. 937-940) which provides as follows: "To carry out the terms and provisions of this Act, the General Assembly shall provide an annual appropriation sufficient for the co-ordinated protection from uncontrolled fire of all forest lands in all of the counties of the State of Georgia. All counties which are now making appropriations for forest fire protection to supplement the funds of the State for the purpose are relieved as of July 1, 1949, of the necessity of making such appropriations and thereafter the operation and the maintenance of a system of state-wide forest fire protection shall be performed with funds appropriated by the General Assembly." While Section 3 above clearly manifests the intention of the General Assembly to provide an annual appropriation sufficient for the co-ordinated protection from uncontrolled fire of all forest lands in all of the counties of this State, it should also be observEd that from the facts presented to me the General Assembly failed to provide such an annual appropriation. If it is true that the General Assembly has not provided an annual appropriation sufficient to pay for such fire protection for all counties out of the State Treasury, then of course it would naturally follow that the Georgia Forestry Commission could not finance such an undertaking. If there are sufficient funds appropriated by the General Assembly for this purpose, then it would likewise follow that all of the counties would be relieved from levying taxes in order to supplement such State appropriation. I am of the opinion that Section 3 of the Act of 1949 does not repeal or abrogate the legislative authority contained in Section 92-3701 (12) which authorizes counties to levy and collect taxes in order to provide fire protection
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and conservation of natural resources, provided it is first established that the General Assembly has not made an adequate appropriation which would permit the State to finance such a project. If the State appropriation is deficient in this respect, I am of the opinion that the counties can levy and collect taxes in an amount sufficient to supplement State funds in order to carry out such a fire protection program. Of course you understand that I am not passing upon the question of whether the Legislature has made an adequate appropriation to finance this program, since this is a matter to be determined primarily by the administrative officials acting in conjunction with the State Auditor.
PUBLIC REVENUE-Estate Taxes Where a non-resident alien left as his sole property in the United State~ shares of stock of a Georgia corporation, such entire estate is subject to Georgia tax.
October 7, 1949 Honorable W. Harvey Atkinson, Director Property and License Tax Unit
I am pleased to acknowledge your letter of September 30, 1949, together with enclosures from the law firm of Jones, Jones and Sparks, Macon, Georgia, with reference to the estate of a deceased nonresident alien.
It is indicated that this nonresident alien died, seized and possessed of shares of stock in the Bibb Manufacturing Company, a Georgia corporation, which was all of the property the deceased alien owned in the United States. The question is, therefore, to what extent and to what amount the estate of the deceased alien is taxable in Georgia for estate taxes.
Code Sections 92-3401 and 92-3401.1 of the Code of Georgia of 1933 determine who shall pay estate taxes and also the manner of computation, and I am quoting these code sections hereunder as follows:
"92-3401. Assessment and coUection of 80 per centum of Federal estate tax as State tax; returns.-It shall be the duty of the legal :representative of the estate of any person who may die a resident of this State, and whose estate i;; subject to the payment of a Federal estate tax, to file with the State Revenue Commission a duplicate of the return which he is required to make to the Federal authorities, for the purpose of having the estate taxes determined. When such duplicate is filed, the Commission shall compute the amount that would be due upon said return as Federal estate taxes under the Act of Congress relating to the levy and collection of Federal estate taxes upon the property of said estate ta,xable in Georgia, and assess against said estate as State taxes 80 per centum of the amount found to be due for Federal estate taxes: Provided, that if after the filing of a duplicate return and the assessment of the State taxes the Federal authorities shall increase or decrease the amount of the Federal estate tax, an amended return shall be filed with the State Revenue Commission showing all changes made in the original return and the amount of increase or decrease in the Federal estate tax, and the State Revenue Commission shall assess against said estate 80 per cent. of the additional amount found to be due for Federal estate tax. In the event of a decrease in the Federal estate tax, the State shall refund to said estate its proportion of said decrease."
"92-3401.1 Nonresident decedents; amount of tax.-lt shall be the duty of the legal representative of the estate of any person who may die a nonresi-
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dent of this State but who owns or controls property located within this State, and whose estate is subject to the payment of a Federal estate tax, to file with the State Revenue Commissioner a duplicate of the return which he is required to make to the Federal authorities and pay a tax thereon as determined by s2ction 92-3401. The amount of the tax to be paid shall be in proportion to ihc amount of property located in this State as compared to the total amount of property located elsewhere."
You will note from Code Section 92-3401.1 that "any person who may die a nonresident of this State but who owns or controls property located within this State, and whose estate is subject to the payment of a Federal estate tax" is required to pay estate taxes to the State of Georgia. You will note also from the last sentence in the above quoted code section the amount of tax to be paid shall be in proportion to the amount of property located in this State as compared to the total amount of property located elsewhere.
I am of the opinion that all of the property located within this State should be assessed for estate taxes to the State of Georgia and the amount of taxes determined pursuant to the above Code Section 92-3401.
PUBLIC REVENUE-Farm Gas Tax Tax on gas for jeep tractors is not subject to refund.
May 30, 1949 Mr. Albert Dozier, Deputy Commissioner Department of Revenue
I am pleased to acknowledge your letter of May 26, 1949 in which you requested an official opinion relative to whether jeep tractors are eligible for refund under the Farm Gas Tax Refund Act.
Code Section 92-14031 Paragraph I provides: "Any person, who shall purchase gasoline in quantities of 25 gallons or more at any time, and use said gasoline in operating tractors or other farm equipment used exclusively for agricultural purposes in farm operations, no part of which is used in any vehicle or equipment driven or operated upon the public roads, streets, or highways of this State, shall be entitled to a refund of all of the State tax on such gasoline except one cent per gallon, subject to the conditions set forth in this subsection. The right to receive any refund under the provisions of this subsection shall not be assignable and any assignment thereof shall be utterly void and of no effect. Nor shall any payment thereof be made by the Treasurer of the State to any person other than the original person entitled thereto using motor fuel as hereinabove set forth in this subsection." (Emphasis supplied) It is my understanding that the Revenue Department's construction of this section, since the Act was passed in 1946, was to confine it to agricultural instruments which were used exclusively for farm plowing purposes. Since a jeep tractor may be used as a passenger vehicle by detaching the plow, it would appear that such vehicle was not within the purview of this act since it is not exclusively used for agricultural purposes. As you know, exemptions are construed strictly and the Court of Appeals has said in the case of Twentieth Century-Fox v. Phillips, 76 Ga. App. 825, that any doubt should be resolved in favor of the taxpayer, but this rule was not
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applicable when the legislative intent was manifested. Therefore, in view of the above it is my opinion that the legislature intended the farm refund law to apply only to such vehicles that are used exclusively for farm purposes.
PUBLIC REVENUE-Homestead Exemption Joint owners of a farm, each living in a separate house on said farm, are entitled to but one exemption which may be divided among them.
March 3, 1949 Honorable E. W. Marshall Tax Receiver, Houston County
This will acknowledge receipt of your letter of February 26, 1949, with reference to homestead exemptions to joint owners of property.
An Act approved March 9, 1945 (Ga. Laws 1945, pages 435-437) provides under Section 3 thereof as follows:
"That where the property on which a homestead exemption is claimed is jointly owned by the occupant and others, the occupant or occupants shall be entitled to claim a proportionate exemption of the amount allowed by law in proportion to which the interest of the occupant bears to the total interest of the property."
You state in your letter that there are three brothers, buying, operating and all living in separate houses on a farm; that the deed is made to all three brothers, in other words, joint ownership; that they are all three applying for $2,000.00 homestead exemption. You ask if it would be legal to allow each one a separate exemption.
Under the above quoted provision of the Act amending the homestead exemption law, it would appear that it was the intention of the General Assembly that each person, where otherwise eligible, could claim their proportionate share of homestead exemption according to ownership and occupancy. In other words, each brother owning a one-third interest in the farm and occupying a house thereon could claim a homestead exemption of one-third of the total exemption provided by law.
Of course, you understand that the Attorney General cannot, under the law, render an official opinion to anyone except the Governor and heads of the various departments of State, and, therefore, what is said here is purely in a personal capacity in an effort to be of help to you and is not binding on the local taxing authorities charged with the administration of the homestead exemption law.
PUBLIC REVENUE-Homestead Exemption (Unofficial) Homestead exemption for the year is waived as to property on which application is not made by April 1.
April 20, 1949 Honorable J. M. Palmer, Clerk Tax Equalizing Board Whitfield County
The Attorney General cannot under the law render official opinions to anyone except the Governor and heads of the various departments of State. However, I am glad to quote to you the law which will answer your question as to
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whether or not anyone is entitled to homestead exemption after April 1st: "Section 92.220. Application for exemption.-The person seeking said
exemption shall, on or before April 1 of the year in which exemption from taxation is sought, file a written application and schedule with the county tax receiver or tax commissioner charged with the duty of receiving returns of property for taxation. The failure to so file said application and schedule as provided herein shall constitute a waiver upon the part of such person failing to make said application for exemption for said year, except that in counties of over 200,000 or more according to the 1940 or any future census, the time of filing written application and schedule for exemption shall be on or before May 1 of the year in which exemption from taxation is sought."
"Section 92-221. Waiver of exemption.-The failure to so file said application and schedule as provided herein shall constitute a waiver upon the part of such person failing to make said application for exemption for said year."
I may add that under the original act, homestead exemptions began as of January 1, 1938, to continue for the years thereafter, and it is only the property owned as of January 1st that would be subject to exemption where every other requirement of law is met.
PUBLIC REVENUE-Homestead Exemption (Unofficial) Apartment houses are not exempt from taxation even though one or more apartments are occupied by the owner as a dwelling.
June 16, 1949 Honorable L. W. Keith, Sr., Chairman Coweta County Board of Tax Equalizers
I am pleased to acknowledge receipt of your letter of June 10, 1949. 1. If the owner and occupant of a residence converts a room or rooms of his residence into a store by placing therein store fixtures and merchandise and operates a commercial enterprise himself, or rents the same out, is such owner and occupant entitled to a homestead exemption, and is it legal to allow exemption for that portion of the dwelling used as a home and to make an assessment for that portion of the dwelling used as a commercial enterprise? 2. Whether or not a dwelling that is converted into three or more family units and the owner occupying one of the units is entitled to a homestead exemption? In answer to your first inquiry, I wish to quote to you from Code Section 92-233, paragraph (k) (3) of the Code of Georgia of 1933, wherein homestead is defined, which reads as follows: "(k) (3). Property used for commercial purposes or the conduct of a business shall not be classified for the purposes of this subsection as a homestead unless the business conducted or the commercial enterprise carried on is of such nature that same is customarily conducted at a place of residence. In no event shall property be exempt from taxation hereunder when a commercial enterprise requiring the services of employees is carried on on said property or when the nature of the business and the enterprise requires physical changes in the property to render same suitable for such business or enterprise." Therefore, it would appear from reading the above paragraph of the Code Section that a commercial enterprise in a private residence would prohibit the owner thereof from claiming homestead exemption. Of course, the facts in each
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particular case must be ascertained by the proper authorities, in view of the paragraph above quoted.
In reference to your second inquiry, paragraph (k) (5) of the above Code Section defines an apartment house to be a building designed or altered for occupancy as residences by three or more separate families or units, and paragraph (k) (4) of the same Code Section provides as follows:
"(k) (4). Apartment houses shall not be exempt from taxation hereunder even though one or more apartments are occupi6d by the owner as a dwelling."
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
PUBLIC REVENUE-Homestead Exemption (Unofficial) No constitutional exemption from real or personal property taxation is afforded American Legion posts.
September 8, 1949 Honorable John Ashby Judge Advocate Lyle-Brewster Post No. 50
The Attorney General is away from his office and out of the State on vacation. Therefore, your letter addressed to him dated August 15, 1949, has been referred to me for reply.
You ask an official opinion from the Attorney General as to whether the real and personal property belonging to the Lyle-Brewster Post No. 50, The American Legion, Department of Georgia, is taxable. Since the Attorney General's legal authority is restricted by law to matters relating to State Government, an opinion rendered by the Attorney General, or any member of his staff, to anyone except the Governor or heads of the various departments of State must necessarily be personal and unofficial. However, I am glad to advise you as, follows:
All property, both real and personal, is taxable except that which is exempt ~nder the Constitution of 1945 (Section 2-5404 of the Code of 1933 Annotated, 1948 revision). There is no classification under the property tax exemptions enumerated in the Constitution that could include the property of the Legion Post, even though it is a non-profit organization being operated solely for the benefit of its membership and the American Legion and its property was fully :acquired through the donations of the citizens of your community and the membership of the Post.
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PUBLIC REVENUE-Homestead Exemption (Unofficial) 1. Where property is assessed at less than its market value the homestead exemption would be taken from the assessed value. 2. Only so much of the homestead as is actually occupied as such is subject to the exemption.
September 28, 1949 Hon. R. H. Howard Board of Tax Assessors Houston County
I regret the delay in answering your letter. Due to the fact that my office has been busy trying cases practically every day, we have gotten somewhat behind with our correspondence.
As I understand your question, you desire to know whether the homestead. exemption applies to the fixed amount of the house or from the percentag~ upon which taxes are levied.
As you know, the law requires that real property be assessed at its fair market value but by custom throughout the various counties in Georgia a percentage of the fair market value has been made the basis of the real property tax. Therefore, for the sake of illustration, if the piece of property is actually worth $10,000, and if the property in your county is being assessed at fifty percent of the value, the property would be assessed at $5,000, less the homestead exemption. The homestead exemption would be taken from the $5,000.
The answer to your second question as to whether the exemption applies on the house and land or on the house alone is clearly answered by the statute 92-219, which reads as. follows:
"The homestead of each resident of Georgia actually occupied by the owner as a residence and homestead, and only so long as actually occupied by the owner primarily as such, but not to exceed $2,000 of its value, is hereby exempted from all ad valorem taxation for State, county and school purposes, except taxes levied by municipalities for school purposes and except to pay interest on and retire bonded indebtedness: ..."
I think the above statute also answers your question number three. Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
PUBLIC REVENUE-Homestead Exemption (Unofficial) The filing of a homestead exemption is a personal privilege and a taxpayer who requested the tax receiver to make for him a homestead exemption application, and who has not filed his return, is liable for 10 percent penalty.
Honorable Fay B. Murphey, Sr. Commissioner of Roads and Revenue Walker County
December 20, 1949
In answer to your letter of December 15, 1949, requesting an opinion regarding the application for homestead exemption by a taxpayer through the tax receiver or his clerk by telephone, and also as to the failure of a taxpayer
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to make his return and his liability for the penalty for not so doing, although an affidavit was made by the tax receiver that he received a telephone call requesting that he make said return for the taxpayer, I wish to first refer you to Code Sections 92-220 and 92-221 of the Annotated Code of Georgia of 1933, which read as follows:
"92-220. Ap,plication f'or exemption.-The person seeking said exemption shall, on or before April 1 of the year in which exemption from taxation is sought, file a written application and schedule with the county tax receivE;r or tax commissioner charged with the duty of receiving returns of property for taxation. The failure to so file said application and schedule as provided herein shall constitute a waiver upon the part of such person failing to make said application for exemption for said year, except that in counties of over 200,000 or more according to the 1940 or any future census, the time of filing written application and schedule for exemption shall be on or before May 1 of the year in which exemption from taxation is sought."
"92-221. Waiver of exemption.-The failure to so file said application and schedule as provided herein shall constitute a waiver upon the part of such person failing to make said application for exemption for said year."
I am of the opinion that the law requires a taxpayer to request in writing the benefit of homestead exemption and that the tax receiver has no right or legal authority to do this for the taxpayer, and I am also of the opinion that if a return is not made under the circ*mstances as outlined in your letter, that the taxpayer would be liable for the 10 per cent penalty.
My opinion regarding these matters is based upon the wording of the statutE;s which I interpret from the language used therein, that these rights and privileges are personal and cannot be exercised or delegated in the manner as they were according to your letter.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this matter must be accepted as unofficial and personal.
PUBLIC REVENUE-Income Tax 1. Overpayment by reason of veteran's failure to claim $1500 exemption will be refunded without interest. 2. Unpaid income taxes of one who dies in active service from December 7, 1949 to termination of war, whether accrued before or after December 7, 1949, will be abated, and taxes paid from December 7, 1949 will be refunded to his estate, without interest.
April 13, 1949 Mr. Fielding Dillard, Director Income Tax Unit Department of Revenue
I am pleased to acknowledge your letter of March 25, 1949 in which you requested an opinion relative to whether any legislation was passed during the 1949 session of the General Assembly which will authorize the Revenue Department to pay refunds to veterans who failed to take their $1,500 deduction when computing their State income tax, as permitted under the statute found in Georgia Laws 1946, page 16, Code Section 92-3303a.
As you know, many veterans for various reasons did not take advantage of
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their exemption of $1,500 from their gross income, and paid their State income tax as if no such deduction existed and when they found they were entitled to such deduction, filed claims for refund. Since no appropriation was set up to pay such refunds, and since the payments made by the veterans could not be classified as "illegal" and "erroneous", there was no authority for the Revenue Department to pay them under the General Appropriation Act. In this connection, please see Maynard vs. Thrasher, 203 Ga. 280.
The Law Department drew legislation for the House setting up a specific appropriation to pay such refunds. For some reason not known to me, a similar bill was introduced in the Senate as Senate Bill No. 70, and since appropriations cannot originate in the Senate, the appropriation was stricken from this bill; therefore, paying refunds under Senate Bill No. 70 is not possible. On the other hand, this bill does direct the Revenue Department as follows:
"Section 1. That the income tax returns of all men and women serving in the armed forces of the United States between January 1, 1941 and the termination of World War II shall be computed or re-computed so as to allow a deduction from gross income for any year of so much of their compensation for such services as does not or did not exceed fifteen hundred dollars ($1500.00) , in addition to all other deductions allowed by law, and to exempt such compensation from income taxes, where such deduction was not made either before or after the passage of this Act or the Act approved February 1, 1946. (Ga. Laws 1946, pages 16-18.)
"Section 2. That after allowing said deduction as provided in the Act of 1946, and as herein provided, any sum found to be overpaid to the State Revenue Commissioner shall be refunded, without interest, to the taxpayer."
You will note that Section 2 provides that the payment of these refunds shall be without interest.
A close scrutiny of the Appropriation Act of 1949 for the Revenue Department reveals a provision which has not heretofore been in the Revenue appropriations to pay illegal and erroneous refunds. I quote to you from House Bill No. P6, as follows:
"Provided, further, that in addition to the above appropriation, there is hereby appropriated from every source of income a sufficient sum to make refunds of collections made in error and farmer gasoline tax refunds, and any other refunds specifically authorized by law. No wholesale distributor of gasoline shall be entitled to a refund covering shrinkage in the process of retailing gasoline as authorized by Act of Georgia General Assembly of 1947 (Ga. Laws 1947, page 115), by virtue of said wholesale distributor being engaged in retailing gasoline."
In view of this provision, "and any other refunds specifically authorized by law", it is my opinion that you are authorized to pay refunds without interest to veterans who are so entitled under Code Section 92-3302a, and Senate Bill No. 70. These refunds cannot be paid, however, until July 1, 1949 when the General Appropriation Act goes into effect.
Your next question refers to a statute passed by the 1945 Legislature (Ga. Laws 1945, page 416, amended in 1946, page 11, Code Section 92-3302a), as follows:
"Abatement of income taxes of deceased members of armed forces.-In the case of any individual who dies on or after December 7, 1941, while in active service as a member of the military, naval or armed forces of the United States
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or of any of the other United Nations, and prior to the termination of the present war as proclaimed by the President, all income taxes imposed by the laws of Georgia shall not apply after the date of December 7, 1941, nor shall they apply for preceding taxable years, which are unpaid at the date of his or her death, and such income taxes shall not be assessed, and if assessed, the assessment shall be abated, and if collected, shall be refunded as an overpayment."
You specifically asked me to rule on my construction of this statute and to further rule whether or not any legislation was passed which would authorize you to pay refunds under this law.
I agree that this statute is somewhat confusing and ambiguous; however, it is the policy of this office to give a liberal interpretation to laws covering veterans' benefits.
It is my opinion that the intent of this law is to provide that any individual who dies while in the service of the Armed Forces or the United Nations during the period commencing December 7, 1941 to the termination of the war, as proclaimed by the President-that his State income taxes shall be abated. If they have been paid prior to, or after, his death during this interval his estate is entitled to a refund of such taxes. The law further provides that taxes which were due for preceding taxable years shall not be collected. By that, it means taxes that were owed prior to December 7, 1941 shall not be collected from the veteran's estate. Of course, such taxes paid prior to December 7, 1941 would not be refundable. Again let me caution you, the only refundable taxes are the ones which were paid during the inttrval from December 7, 1941 to the termination of the war. If the deceased veteran did not pay his income taxes during this interval, his estate is not liable for same.
The same rule as stated relative to the appropriation that we have discussed under the $1,500 deduction statute is appropriate here. In other words, the phrase, "to pay all refunds which are legal", applies in this situation under the same logic and reasoning as stated above. On the other hand, since these taxes were not illegally or erroneously collected, coupled with the fact that Code Section 92-3302a did not provide for interest, these refunds shall be made without any interest attached thereto. Of course, these refunds will not be payable until July 1, 1949.
PUBLIC REVENUE-Income Tax A taxpayer may not deduct an exemption for a child who, at the close of the taxable year, will be 18 years of age, unless he is mentally or physically defective.
Honorable Frank S. Twitty Attorney and Counsellor At Law
May 13, 1949
This will acknowledge receipt of your letter of May 10 in which you state that you and the Income Tax Unit of the Department of Revenue are having a friendly argument concerning the interpretation of Section 92-3106 (f) of the State Income Tax Act, as relates to the exemptions for a dependent under 18 years of age.
I am glad to give you my personal interpretation of the law, which, as you know, is unofficial, inasmuch as I cannot as Attorney General render offi-
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cial opm10ns to anyone except the Governor and heads of the various departments of State.
Section 92-3106 of the Code of Georgia of 1933 enumerates certain exemptions that shall be deducted from the net income of a resident individual. Subsection (d) of said section allows deductions for certain dependents as follows:
" (d) Four Hundred dollars for each individual (other than husband and wife) dependent upon and receiving his chief support from the taxpayer, if such dependent individual is under 18 years of age, or is incapable of self-support because mentally or physically defective."
Subsection (f) of Section 92-3106 reads as follows: "(f) The status of the taxpayer on the last day of the taxable year shall determine the right to the exemptions allowed by this section: Provided, that a taxpayf:r shall be entitled to such exemption for husband and wife or dependents who have died during the taxable year." While I was State Revenue Commissioner, I administered the law as relates to deductions allowed under the Income Tax Act for dependents as provided by subsections (d) and (f) of Section 92-3106 of the Code of Georgia of 1933 as it is now being administered and has been by my several successors in office, and I, therefore, think the Income Tax Unit is entirely correct in interpreting subsection (f) to mean that the status of a taxpayer on the last day of the taxable year shall determine the right to deductions allowed under Section 92-3106. That is, that a taxpayer would not be entitled to a deduction for a dependent reaching the age of 18' during the taxable year unless such dependent is incapable of self-support because mentally or physically defective. I not only think that the department's construction is correct but also that the law is equitable inasmuch as a parent is entitled to the deduction where a child is born at any time during the taxable year.
PUBLIC REVENUE-Income Tax 1. Where a taxpayer devotes his entire time to a given business, additional assessments by reason of disallowance of salaries therefor should be quashed. 2. Failure of a corporation to pay dividends will not justify additional assessments where the business has expanded and cash on hand, in relation to business done, is small.
June 21, 1949 Mr. Lee S. Radford Income Tax Unit Department of Revenue
Subject: Valdosta Milling Company. FACTS
This case involves deficiency assessments for the years 1944, 1945 and 1946. These deficiencies were based on the disallowance of the total amount of salaries paid Mr. Grady R. Swope, President of the subject named company, coupled with the fact that the company had not declared dividends during those years.
ISSUES The only issue that I see in this case is the question of whether or not salaries paid Wf:re unrE)asonable for the activity and time that he devoted to the corporation.
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OPINION It is noted that our agent reported that Mr. Swope was involved in a large amount of real estate deals and that he was actively engaged in the construction business in St. Petersburg, Florida. Taxpayer has shown that he does not participate in these activities, but devotes his full time to the Valdosta Milling Company. He has two brothers living in St. Petersburg; one of whom is engaged in the construction business and the other in the real estate business. Therefore, it appears to me that our agent unintentionally and understandably misunderstood the facts in this case. In view of these facts, it has been shown that Mr. Swope does devote his entire time to the business, and I am of the opinion that under Code Section 92-3109 his salary meets the requirements of the above Code Section. The other factor in this problem is whether the failure to pay dividends by the taxpayer was an effort to avoid taxes. A careful study of the record in this case reveals that even though the business has made a profit in these years, at the same time the business has expanded and there has been a relatively small amount of cash on hand considering the volume done by this corporation. In view of the above, it is my opinion that these assessments should be quashed, as I think the taxpayer has adequately carried the burden of showing the reasonableness of his salary and has clearly shown why his corporation has not paid dividends.
PUBLIC REVENUE-Income Tax A grandparent, caring for his grandchild under an award of custody in divorce proceedings, without formal or virtual adoption, is not entitled to $2500 exemption by reason thereof.
August 1, 1949 Hon. F. L. Dillard, Director Income Tax Unit Department of Revenue
I am pleased to acknowledge your letter of July 28th, in which you request an official interpretation of the word "adopt" as used in Section 92-3106 (c) of the Supplement to the Code. In your letter, you state the following:
"It has been our position in this controversy that the term 'natural or adopted' as used in Section 92-3106 (c) means, so far as adoption is concerned, legal adoption with all incidents necessary to making the adoption legal and irrevocable, placing the child in the same category as a natural child would be as to share in the estate, and with all the obligations that a parent would owe to his child, togethH with the legal relationship between fa'ther and child. It would appear in this case that the grandfather has not legally adopted the child, and no court of record could issue a certificate asserting that the child has been adopted, and as stated before the only right the grandfather has is the award of custody in a divorce proceedings, together with the moral obligation demanded by the blood relationship."
Your letter discloses that the grandfather who is a taxpayer in the present controversy, is a widower, and that he has attached to his return an affidavit wherein his daughter agrees and consents to the adoption of the child, and that she has relinquished control of her son to her father. The question presented is whether or not under these facts and circ*mstances the taxpayer is entitled
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to an exemption of $2,500 provided for in Section 92-3106 (c), supra. The taxpayer in the present inquiry is seeking an exemption from taxation.
It is a well recognized rule of statutory construction that all grants of exemption must be strictly construed in favor of the State and against the taxpayer. See, Standard Oil Company v. State Revenue Co,mmission, 179 Ga. p. 371; State Revenue Commission v. Brandon, 184 Ga. p. 225. The particular part of the statute in question here, provides as follows:
"92-3106. There shall be deducted fr()m the net income of resident individuals the following exemptions:
" (c) In the case of a widow or widower or divorced person having minor child or children, natural or adopted, who receive their chief support from taxpayer, $2,500."
Applying the above rule of law that all grants of exemptions from taxation must be strictly construed in favor of the State, we must come to the conclusion that the word "adopted" as used in the exemption statute, means a legal adoption. It would require a liberal interpretation of the word "adopted" to hold that the word as used here would permit a taxpayer to receive an exemption of $2,500 simply because he had a contract of adoption or an affidavit from the mother relinquishing control of the child. Even in cases which do not involve exemptions from taxation, the courts hold that in order to enforce such an agreement under the doctrine of a virtual adoption, the contract must comprehend and intend a legal adoption. In the case of To,ler v. Goodin, 200 Ga. p. 527, at page 539, the Supreme Court of our State held the following:
"It is true that, in order to be enforceable under the doctrine of virtual adoption, the contract must comprehend and intend a legal adoption according to statute." CITING Jones v. O'Neal, 194 Ga. p. 49.
The statutory method for the adoption of children is set forth in Chapter 74-4 of the Code of Georgia and the Supplement thereto.
In view of the above provisions of law, I am therefore of the opinion that the position which you have taken in holding that the word "adopted" as used in Section 92-3106 (c) supra, means a legal adoption, is sound, and in accord with the laws of this State.
PUBLIC REVENUE-Income Tax Shippe,rs maintaining consigned warehouse stocks in Georgia and represented in this State by a person on a commission basis must file income tax returns.
Honorable Arthur Mims
September 6, 1949
The Attorney General has been away from his office, out of town on offi-
cial business, since receipt of your letter of August 22nd. His whole staff has been swamped with matters demanding immediate attention, and I am sorry I have not been able to reach your letter sooner, which has been referred to me for reply in the absence of the Attorney General.
As a member of the Attorney General's staff assigned to the State Revenue Department, it is my personal opinion, under the facts stated in your letter, that where shippers maintain consigned warehouse stocks in Georgia and are represented by a person within the State on a commission basis, an agency is
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established which would require a filing of income tax returns with the State Revenue Commissioner, as provided by law.
Since the Attorney General's official authority is restricted by law to legal matters relating to the State Government, this letter must be accepted and regarded as strictly unofficial and personal.
PUBLIC REVENUE-Income Tax (Unofficial) A British corporation doing business or deriving any income within the State of Georgia is subject to Georgia income tax.
November 1, 1949 Honorable F. L. Dillard, Director Income Tax Unit Department of Revenue
In reply to your letter of October 24, 1949, requesting an opinion regarding the taxability of Associated British Picture Corporation, Ltd., London, England, I would like to call to your attention the general Income Tax Law of Georgia of 1931 as amended through 1946, which provides that any person, firm or corporation doing business and deriving an income within the State of Georgia is subject to income tax unless otherwise exempt.
It seems that the Associated British Picture Corporation, Ltd. only read part of the Proclamation or agreement the United Kingdom and Northern Ireland had with the United States regarding double taxation. In this connection the following is quoted from the United States Statutes At Large, 79th Congress, 2d Session, 1946, Volume 60, Part 2, to-wit:
A PROCLAMATION Whereas a convention between the United States of America and the United Kingdom of Great Britain and Northern Ireland for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income was signed by their respective Plenipotentiaries at Washington on April 16, 1945.
Article I (1) The taxes which are the subject of the present Convention are: (a) In the United States of America: The Federal income taxes, including sur-taxes and excess profits taxes (hereinafter referred to as United States tax). (b) In the United Kingdom of Great Britain and Northern Ireland: The income tax (including surtax) the excess profits tax and the national defense contribution (hereinafter referred to as United Kingdom tax). 60 Stat., Pages 1377-1378, Article I, Para. (1).
PERMANENT ESTABLISHMENT The term "permanent establishment" when used with respect to an enterprise of one of the Contracting Parties means a branch, management, factory or other fixed place of business, but does not include an agency unless the agent has, and habitually exercises, a general authority to negotiate and conclude contracts on behalf of such enterprise or has a stock of merchandise from which he regularly fills orders on its behalf. An enterprise of one of the Contracting Parties shall not be deemed to have a permanent establishment in the territory of the other Contracting Party merely because it carries on business dealings
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in the territory of such other Contracting Party through a bona fide commission agent, broker or custodian acting in the ordinary course of his business as such. The fact that an enterprise of one of the Contracting Parties maintains in the territory of the other Contracting Party a fixed place of business exclusively for the purchase of goods or merchandise shall not of itself constitute such fixed place of business a permanent establishment of such enterprise. The fact that a corporation of one Contracting Party has a subsidiary corporation which is a corporation of the other Contracting Party or which is engaged in trade or business in the territory of such other Contracting Party (whether through a permanent establishment or otherwise) shall not of itself constitute that subsidiary corporation a permanent establishment of its parent corporation. 60 Stat., Page 1379, Article II, Para. (1).
Article II (1) In the present Convention, unless the context otherwise requires: (a) The term "United States" means the United States of America, and when used in a geographical sense means the States, the Territories of Alaska and of Hawaii, and the District of Columbia. 60 Stat., Page 1378, Article II, Para. (a).
Article III A United Kingdom enterprise shall not be subject to United States tax in respect of its industrial or commercial profits unless it is engaged in trade or business in the United States through a permanent establishment situated therein. If it is so engaged, United States tax may be imposed upon the entire income of such enterprise from sources within the United States. 60 Stat., Page 1380, Article III, Para. (1). Construing this agreement or law as a whole, I am of the opinion that the Associated British Picture Corporation, Ltd., if doing any business or deriving any income within the borders of the State of Georgia, is subject to the Georgia income tax.
PUBLIC REVENUE-Income Tax The three-year statute of limitations for additional assessments applies to date of original return where no material changes are made by amendment, or in the event of material changes, to the date such amendment was filed.
December 30, 1949 Mr. Fielding L. Dillard, Director Income Tax Unit Department of Revenue
I am pleased to acknowledge your recent letter in which you requested an opinion on the construction of Code Section 92-3303.
You specifically asked that in view of the Code Section 92-3303, which provides that assessment shall be made within three years after return was filed; does the statute of limitations on an amended return run from the date originally filed or from the date of the amended return?
Suppose there is a material change in the amended return. What effect, if any, would that have on the statute of limitations?
As you know, Code Section 92-3303 says: "Except as provided in sub-section (b) of this section, the amount of income taxes imposed by this law shall be assessed within three years after the.
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return was filed, and no proceeding in court without assessment for the collection of such taxes shall be begun after the expiration of such period."
The obvious legislative intent of this statute is to give the Revenue Department sufficient time to review returns of taxpayers, and when a deficiency is discovered, time to make an assessment. It would appear to me that a reasonable interpretation of this statute would be when the taxpayer files an amended return which has no material change, but changes of a minor nature, that the statute of limitations should commence on the date of the original return. On the other hand, when the taxpayer files an amended return which has a material change, it would appear to me to be a logical and reasonable interpretation to have the statute of limitations to commence on the material change only at the time of the filing of the amended return. This would be equitable for the Department and for the taxpayer. It would give the Revenue Department sufficient time to examine the amended return and also give the taxpayer sufficient time to apply for a refund, if that be the case.
If the statute of limitations was construed to run from the date of the amended return, a taxpayer could keep the statute open indefinitely by merely filing amended returns.
I desire to caution you that under our interpretation the only time that the statute commences at the filing of the amended return is when there has been a material change.
PUBLIC REVENUE-Intangibles Tax
An accommodation endorser who holds as security a security deed is liable for intangibles tax to the extent of the instrument endorsed.
February 1, 1949 Honorable W. Harvey Atkinson, Director Property & License Tax Unit
I am pleased to acknowledge your letter wherein you requested an official opinion relative to the intangible tax law.
To simplify your question, let us state it as follows: "A" borrows $2,000 from "X" Bank. "B" is an accommodation endorser on "A's" note. "A" gives to "B" a deed to secure debt to protect him in case he is called upon by the Bank to pay the original note. The question now is whether such security deed in the hands of an accommodation endorser is taxable under the intangile tax act. Code Section 92-102 defines taxable personal property. "What included in 'personal property'.-For the purposes of taxation, 'personal property' shall be construed to include goods, chattels, moneys, credits ami effects, whatsoever they may be; ships, boats and vessels, whether at home or abroad, and capital invested therein; bonds and other securities of corporations of this or of other States; stock of corporations of other States; bonds, notes or other obligations of other States, and of the counties, municipalities or other subdivisions thereof; money due on open account or evidenced by notes, contracts, bonds, or other obligations, secured or unsecured." Code Section 92-115 provides that certain intangibles are taxed as heretofore.
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"Certain intangibles taxed as heretofore. Franchises and all shares of building and loan associations and all shares of banks or banking associations, including Federal Land Banks, together with all money capital in the hands of individual citizens of Georgia coming into competition with the business of national banks, and accounts receivable and all notes except those representing credits secured by real estate are hereby classified to be taxed as heretofore provided by law and shall not be subject to the provisions of the following sections of this law. (Sections 92-116 to 92-159, 92-9946) ."
In the case of Suttles, Tax Collector, et al vs. Northwestern Mutual Life Insurance Co., 193 Ga., 495, the Supreme Court stated:
"Aside from certain permitted exemptions, the constitution and laws :>f Georgia evince an intention to tax all property of every kind or class of which it has jurisdiction for that purpose."
It is clear that there is no specific exemption for deeds to secure a debt under the intangible tax act. Thus, the question now is whether such deed to secure debt in the hands of a holder who has not received any consideration for same, but has merely acted gratuitously, is taxable.
It has been argued that since this security deed is in the hands of an accommodations endorser that he is not liable for the tax du(; to the fact that he has received no value for the deed. There is authority to the effect that the fact that the lender has loaned the money to the maker is consideration for the accommodation maker or endorser. Of course, it is fundamental that under the Uniform Negotiable instruments law that an accommodation maker or endorser is liable if such note or draft is not paid by the principal maker or drawer; therefore, when he receives a deed to secure debt for his protection it is my opinion that such instrument does have value to him and is taxable. It is my further opinion that the accommodation endorser who holds a security deed for his protection should be taxed as to the amount of the loan and not the amount of the deed. In other words, if in the illustration given above the property given as security was worth $10,000 the grantee of the security deed would be taxable for $2,000, the amount of the original note and not the worth of the deed.
PUBLIC REVENUE-Intangibles Tax An accommodation endorser who has taken no security is not liable under the Intangibles Tax Act.
March 7, 1949 Honorable W. Harvey Atkinson, Director Property and License Tax Unit
I am pleased to acknowledge your letter in which you request an official opinion relative to the liability of an accommodation endorser for intangibles taxes.
To simplify your question, let us state it as follows: "A" borrows $2,000 from "X". "B" is an accommodation endorser on "A's" note. "B" receives no security whatsoever for his endorsem*nt, but merely lends his credit to "A" gratuitously. Your query is whether or not "B" as an accommodation endorser is taxable under the intangibles tax act?
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I respectfully call your attention to an official opmwn rendered to you on February 1, 1949, in which I ruled that a deed to secure a debt in the hands of an accommodation endorser was taxable under the intangibles tax act on the theory that it was of value, since it was executed for his protection. To differentiate the instant case, the accommodation endorser here has only a contingent liability; therefore, it is my opinion that such an endorser does not come under the purview of the intangibles tax act.
PUBLIC REVENUE-lntangi.'bJes Tax (Unofficial) The 1949 amendment to the Intangibles Tax Act does not affect the status of building and loan associations.
May 25, 1949 Hon. F. C. Tigner, Jr., Chairman Board of Tax Assessors Troup County
I am in receipt of a letter from Hon. J. R. Terrell, Jr., in which he makes request that I write you concerning the taxable status of intangible assets held by a building and loan association. He also asks whether or not the capital stock or shares of such building and loan associations are taxable.
Under the constitution and laws of this State, the Attorney General is prohibited from rendering official opinions to anyone other than the Governor and heads of the various departments of State upon matters pertaining to the operation of the State government. You will therefore understand that I can not give you an official opinion on the question propounded. I am glad however, to refer you to certain provisions of law which I trust will give you the desired information.
Section 3 (aa) of the Intangibles-Classification Act of 1937-38 provides as follows:
"A property tax is hereby levied for the year 1938 and annually thereafter at the rate of one dollar and fifty cents ($1.50) on each one thousand ($1,000.00) dollars, of the fair market value of all notes or other obligations insured by the Federal Housing Administration (except those owned by banks) and of all notes or obligations representing loans, secured by real estate, made by state building and loan associations and federal savings and loan associations for the purpose of financing of homes, as of the first day of January, up to the value of five thousand ($5,000.00) dollars each. Any fair market value thereof in excess of five thousand ($5,000.00) dollars shall be taxed as provided in Section 92-118."
At the 1949 session of the General Assembly, the Intangibles Tax Act, Sections 2 and 3 thereof, was amended so as to provide for the taxation of accounts receivable and notes not secured by real estate at the rate provided for in the Intangibles Tax Act itself, rather than at the higher rate prescribed for ad valorem taxation. Section 2 of the Act of 1949, page 1051, provides as follows:
"Real property (including leaseholds which are hereby classified as real property) and tangible personal property shall be taxed as now provided by law. All tangible personal property is hereby classified, in keeping with the constitutional amendment adopted in 1937. Franchises and all shares of bank or banking associations, including Federal Land Banks, together with all moneyed capital in the hands of individual citizens of Georgia coming into "OmpAtition with the business of National Banks are hereby classified to be taxed as hereto-
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fore provided by law and shall not be subject to the provisions of the following sections of this Act."
It would seem that the Act of 1949 did not change or alter the taxable status of building and loan associations as it existed prior to that time. The 1949 Act is directed to the placing of accounts receivable and notes not secured by real estate under the provisions of the intangibles tax classification, rather than the ad valorem tax rate. I am enclosing to you a memorandum prepared by Hon. Standish Thompson, Attorney for the Georgia Association of Taxing Officials, in reference to the classification of accounts and notes as prescribed by the 1949 legislative enactment. I believe you will find his analysis of this subject very interesting and informative.
Since my official authority is restricted by law to legal matters relating to the State government, my views in this letter must be accepted as unofficial and personal.
PUBLIC REVENUE-lntan.gibles Taxes So long as debentures are outstanding and the benefits thereof are held by any person, they are subject to ad valorem intangibles taxes.
October 10, 1940 Honorable W. Harvey Atkinson, Director Property and License Tax Unit
In reply to your letter of September 26, 1949 in regard to the taxability of certain debentures set out therein, I wish to advise you that: If the debentures are outstanding and the interests or other benefits therefrom are held by any person, firm or corporation and not retired and cremated as thE:rein provided by the issuance thereof, I am of the opinion that so long as the debentures are outstanding regardless of who receives the benefit, they are subject to the ad valorem intangibles taxes.
PUBLIC REVENUE-Motor Fuel Tax 1. The commissioner has reasonable discretion to waive penalty and interest. 2. Penalty and interest do not become part of the tax.
January 14, 1949 Honorable Charles D. Redwine State Revenue Commissioner
Re: Perfect Oil Company, Inc., Brunswick, Georgia, Claim Revenue Department under Section 92-1407 (d).
In response to your letter of December 29 regarding thE: subject matter, I have carefully examined the entire file and personally investigated the facts concerning the contention of Mr. John Gilbert to the effect that the failure of the corporation to make the necessary reports was due to causes over which he had no control.
I find from your files that there is a balance due on the claim of $2,507.28, principal, and $747.20 due as penalty and interest to November 20, 1948.
The question you present in this case is whether you have authority to waive the penalty as provided for by Section 92-1407 (d) of the Motor Fuel Tax Act if the facts and circ*mstances justify your exercise of such discretion.
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Your file discloses that your predecessor declined to waive the penalty and interest in this case because he considered the law to make it mandatory on the Commissioner to impose the same. Moreover, I am advised by Mr. Womack of your department that he received an opinion from an Assistant Attorney General holding that the penalty and interest under Code Section 92-1407 (d) became a part of the tax.
While I dislike very much to disagree with your predecessor's opinion and the conclusion of law reached by one of my Assistants in the premises, I am compelled to hold that the Section referred to does not, either directly or indirectly, provide that the penalty and interest become a part of the tax.
In this case as in all other cases unless otherwise provided by law, the State Revenue Commissioner is granted reasonable discretion in ascertaining whether penalty and interest should be imposed, depending entirely on the circ*mstances in each case.
In the case at hand, there is evidence in the file that Mr. Courtland Gilbert was stricken with paralysis and rendered unable to make any reports and was subsequently forced to liquidate his business because of this illness.
In view of these circ*mstances, it is my official opinion that you would be authorized to waive the penalty and interest by exercising your discretion as applied to this case and accept the checks which have been tendered in payment of the amount due.
PUBLIC REVENUE-Motor Fuel Taxes Diesel engines propelled on highways are subject to a 6 cents per gallon fuel tax.
March 29, 1949 Honorable W. Roscoe Coleman Representative, Richmond County
I am pleased to acknowledge your letter of March 20th wherein you ask if motor buses and trucks operating on the highways of this State equipped with diesel engines are liable for the tax on fuel used in such diesel engines.
I wish to advise that a tax of .06c per gallon is collected. All vehicles using fuel to propel such vehicle over the highways of this State are taxable just as if such vehicle contained a gasoline motor. When fuel is used in diesel engines that are stationary, such as in cotton gins, saw mills and the like, there is no excise tax to be paid for such fuel.
PUBLIC REVENUE-Motor Fuel Tax Refunds to retailers of 2 per cent of retail tax will be made after July 1, 1949.
April 29, 1949 Honorable Albert Dozier, Director Retail Gasoline Dealers Refund Unit State Revenue Department
I am pleased to acknowledge your letter of April 20, in which you requested my opinion as to whether the 1949 General Assembly passed any legislation which would authorize you to pay refunds under an Act passed by the 1947 Legislature, (Ga. Laws 1947, pages 1115-1118).
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As you know, the Legislature in 1947 passed a bill which provided for an allowance of two per cent of all taxes imposed by the State of Georgia on all motor fuel and kerosene sold by retail dealers to cover loss by evaporation and the expenses for collecting the tax for the State.
The Attorney General ruled that refunds could not be paid under this law <lue to the fact that no appropriation was set up to pay such refunds. The retail dealers did not agree with this contention, and a case was filed against the State Auditor seeking a declaratory judgment as to whether the retail dealers were entitled to such refunds. The Court of Appeals in the case of Maynard vs. Thrasher, 48 S. E. 2d, 471, held that in order to pay these refunds there must be a specific appropriation in order to come within the constitutional provision which provides for the withdrawal of money from the Treasury, except by lawful appropriation.
A close scrutiny of the Appropriation Act for the Department. of Revenue for 1949, found in Georgia Laws 1949, page 1517, reveals:
"Provided, further, that in addition to the above appropriation, there is hereby appropriated from every source of income a sufficient sum to make refunds of collections made in error and farmer gasoline tax refunds, and any other refunds specifically authorized by law. No wholesale distributor of gasoline shall be entitled to a refund covering shrinkage in the process of retailing gasoline as authorized by Act of Georgia General Assembly of 1947 (Ga. Laws 1947, page 1115), by virtue of said wholesale distributor being engaged in retailing gasoline."
In my opinion, the phrase, "and any other refunds s.pecifically authorized by law", authorizes you to pay such refunds to retail dealers who qualify under the 1947 Act and under the provisions of the appropriation act set out above. However, I must caution you that the appropriation act for 1949 does not go into effect until July 1, 1949; therefore, no refunds can be made until after that <late.
PUBLIC REVENUE-Motor Fuel Tax A bonded distributor of motor fuel and kerosene in Georgia operating retail stores is not entitled to the 2 percent retailer's refund.
October 17,1949 Honorable Charles D. Redwine State Revenue Commissioner
I am pleased to acknowledge your letter of recent date relative to whether a bonded distributor of motor fuel and kerosene in Georgia is entitled to 2o/o refund on their own retail stores, coupled with the 1% refund that they receive as bonded distributors.
On May 17, 1947 this question arose shortly after the Legislature had passed the amendment to the Motor Fuel Tax Act (Ga. Laws 1947, pages 1115 through 1118) and in an opinion to the Honorable Glenn Phillips I held:
"On the other hand, if the distributor operates his own retail establishments he is not selling to himself when he places the motor fuel in the various tanks and, therefore, he would not necessarily be under the obligation of collecting the taxes when he placed the motor fuel in the tanks, however, he must pay thfose taxes to the State as he makes the retail sales. The provision of the Act in question authorizing the two per cent (2o/o) refund to cover losses in evaporation
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and expenses in collecting the tax would apply to him as a retail dealer." Subsequent to this opinion I ruled that the refunds could not be paid under
the law due to the fact that no appropriation was set up to pay such refunds. This ruling was taken to the Court of Appeals by the Retail dealers in the case of Maynard vs. Thrasher, 48 S. E. 2d, 471. The Court of Appeals sustained my view in the matter and until the 1949 Legislature met, there were no refunds paid under this law.
On April 29, 1949 I held that in the Appropriation Act of the Revenue Department the phrase, "and any other refunds specifically authorized by law", authorizes you to pay such refund to such retail dealers who quali:(y under the 1947 act under the provisions of the 1949 Appropriation Act.
The Revenue Appropriation Act of 1949 specifically says: "No wholesale distributor of gasoline shall be entitled to a refund covering shrinkages in the process of retailing gasoline as authorized by an Act of the Georgia General Assembly of 1947 (Ga. Laws 1947, page 1115) ~.Y virtue of said wholesale distribulor bein,g engaged in retailing gasoline." Accordingly, it appears to me that the Appropriation Act specifically exempts wholesale distributors who have retail outlets, and sets no appropriation to pay that class of individuals. In view of the above, it is my opinion that wholesale distributors with retail outlets are not entitled to the 2% refund.
PUBLIC REVENUE-Motor Fuel Tax One selling gasoline on commission for a wholesale distributor is entitled to a retailers refund.
November 28, 1949 Honorable W. L. Burch, Director Farm Gasoline Tax Refund Unit
I am pleased to acknowledge receipt of your letter of November 19, 1949, requesting an opinion as to a person selling gasoline for a wholesale distributor on commission being entitled to the refund provided by the Georgia Law where the agent for the wholesaler owns a retail gasoline business of his own.
Under the law regarding refund, I am of the opinion that this person working on a commission for a wholesale distributor does not have such an interest in the wholesale business that would prevent him from being entitled to the retailer's refund.
PUBLIC REVENUE-Motor Vehide License Tax A Drive-It-Yourself system is not a common or a contract carrier for hire and driverless trucks rented by them carry the rate imposed on trucks not used as common or contract carrier.
February 28, 1949 Mr. J. E. Briscoe, Director License Tag Division Motor Vehicle Department
Subject: Annual License Fees for Trucks owned and rented by the Dixie Drive It Yourself System.
Stating the facts briefly as contained in the letter to you dated February
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4, 1949, from Mr. Newell Jones, Attorney at Law, in behalf of his client, the Dixie Drive It Yourself System owns trucks which they rent to persons needingthe same for the transportation of property or persons, as the case may be, without drivers, and which trucks are operated by the person or persons renting the same.
The question therefore arises as to whether the Dixie Drive It Yourself System is a common or contract carrier so as to require annual license tags for the trucks owned and rented by them at the rate imposed by law on each truck operated as a common or contract carrier for hire or whether the rate imposed on trucks not used as a common or contract carrier shall apply.
Under the facts of operation of the Dixie Drive It Yourself System, as stated in the letter above referred to, and after a study of the Motor Carrier Act and the law relating to motor common carriers, I do not construe the provisions of either of the Acts so as to classify the Dixie Drive It Yourself System to be either a common or contract carrier, and the annual license tax imposed on trucks not used as a common or contract carrier for hire would apply to the trucks operated by them.
PUBLIC REVENUE-Motor Vehicle License Tax Where a license fee is not specified for a truck of a given capacity not used as a common carrier, the fee shall be that fixed for trucks of the next lower capacity.
May 8, 1949 Honorable J. E. Briscoe, Director Motor Vehicle License Unit
This will acknowledge receipt of your letter of February 25, 1949, in which you ask what rate shall apply under the law for annual fees and for the licensing of one and three-fourths ton trucks, not used as common or contract carriers for hire.
The law providing for an annual license and registration of motor vehicles is codified as Chapter 92-29 of the Code of Georgia of 1933 Annotated, and under Section 92-2902 (annotated pocket part) paragraph 3, subsections (a), (b), (c) and (d), annual fees for trucks not used as common or contract carriers for hire are provided as follows:
(a) Less than one ton ............................................................................$ 2.50 (b) One ton .............................................................................................. 5.00 (c) 1% tons .............................................................................................. 10.00 (d) 2 tons .................................................................................................. 20.00 It would appear from the above schedule and other rate schedules as fixed in said section that it was the intention of the General Assembly that the owner of a truck, not used as a common or contract carrier for hire, weighing one and one-half tons and up to two tons, should be required to purchase an annual license tag at the rate of $10.00. it is my opinion that this is particularly true under the fixed rule of construction that "statutes levying taxes should be construed most strictly against the State and in favor of the taxpayer" and in the absence of a fixed rate for trucks of this class weighing in between one and onehalf tons and two tons. Although I find nothing in the law that implies that a higher rate should apply to trucks weighing one and three-fourth tons than that fixed by law
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for trucks weighing one and one-half tons, the courts have held repeatedly that statutes levying taxes on inhabitants of this State will not be extended by implication.
PUBLIC REVENUE-Motor Vehicle Licen11e Tax A parcel delivery company is not liable for "for hire" license plates.
March 30, 1949 Honorable J. E. Briscoe, Director Motor Vehicle License Unit
I am pleased to acknowledge your letter of March 30 in which you requested an opinion on whether or not the Parcel Delivery Company is liable for "For Hire" license plates.
Code Section 68-502, paragraph (c) defines a Motor Carrier for Hire, and it is quoted herewith:
" (c) The term 'motor carrier' means every person except common carriers, owning, controlling, operating, or managing any motor-propelled vehicle (and the less:es, or trustees thereof, or receivers, appointed by any court whatsoever) used in the business of transporting persons or property for hire over any public highways in this State and not operated exclusively within the corporate limits of any city or town; Provided, that the term 'motor carrier' &hall not include and thi11 Chapter shall not apply to: . . ."
Paragraph 3 under Code Section 68-502 exempts certain motor carriers from the "hire" provision and it is quoted, as follows:
" (3) Taxicabs, motor trucks of baggage-transfer companies, and motor trucks of railway express companies and/or motor trucks engaged exclusively in docal draying, which are operating principally within the inc,orporated limits of cities or to,wns, but which may in the prosecution of their regular business occasionally go beyond the limits of the city or town in which they operate and which do not operate between such city or town and fixed termini outside of such city or town limits."
Code Section 68'-709 provides that every motor vehicle for hire must be registered with the State Revenue Commissioner and pay "For Hire" license plates.
After a careful study of the above Code Sections it appears that the Parcel Delivery Company comes within Paragraph 3 of Code Section 68-502, which exempts such motor vehicles whose business is local draying and is operated within the limits of a city or town. I have, further, checked with the Public Service Commission who informs me that the Parcel Delivery Company is not required to file a certificate of convenience, which is required for all carriers for hire.
In view of the above, it is my opinion the Parcel Delivery Company is not liable for "For Hire" license plates.
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PUBLIC REVENUE-Motor Vehicle License Tax A license tag need not be purchased by a citizen of Florida making monthly trips to Georgia to take orders for goods which are delivered at a later date.
April 28, 1949 Honorable J. J. Godley Ordinary, Camden County
I am in receipt of your letter of April 22, 1949 in which you request an opinion as to whether or not a resident of the State of Florida must purchase a Georgia license tag in order to operate his automobile in this State.
You state that the person to whom you make reference in your letter makes one trip each month into Georgia and takes orders from retail dealers for goods to be delivered at a later date.
I am of the opinion that the answer to your question is found in Section 92-2911 of the Annotated Code of Georgia which reads as follows:
"All persons, firms, corporations, or associations, whether resident or nonresident of this State, making or causing to be made by or through any of their agents, servants, or employees, more than two trips per month into this State with any of the vehicles herein named shall be liable to and shall pay the tax herein provided for, except that any of the vehicles named herein shall be allowed a maximum of 10 trips per month into this State for the purpose of hauling seasonable agricultural products grown in this State without payment of the tax herein provided for."
This section would se:em to indicate that such a person would not have to purchase a Georgia license tag under the facts as set out in your letter.
To make an even stronger case, I refer you to Chapter 68-10 of the Annotated Code of Georgia which provides that reciprocal agreements may be made with other States concerning the operation of automobiles by nonresident owners. I find that such an agreement has been made with the State of Florida and in effect this agreement relieves a resident of the State of Florida from the necessity of purchasing a Georgia license tag before operating his motor vehicle in this State. The agreement is possibly subject to the provisions of Section 68-221 of the Code of Georgia of 1933 which reads in part as follows:
"Motor vehicles owned by nonresidents of the State may be used and operated on the public streets and highways for a period of 30 days without having to register and obtain a license to do so or a chauffeur's license: ..."
For further information concerning this reciprocal agreement, I suggest that you write Honorable Walter McDonald, Chairman, Public Service Commission, State Capitol, Atlanta, Georgia.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
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PUBLIC REVENUE-Moto~> Vehicle License Tax Dump trucks working for a construction company on the highways are liable for license tags.
Hon. W. L. Joiner, Assistant Director Motor Vehicle License Unit Department of Revenue
August 15, 1949
I am pleased to acknowledge your letter in which you requested an official opinion as to whether Euclid dump trucks working for the MacDougald Construction Company on the super highway of Fulton County are liable for license tags.
One of my assistants went out to the construction job and watched these trucks in operation and it was his opinion that these trucks come within the definition provided for in Code Section 92-2901 (b) Trucks:
"A motor vehicle for the transportation of property, which shall include any self-propelled vehicle designed for use as a traveling power plant or fol' drawing other vehicles but having no provision for carrying loads independently, except what are commonly known as farm tractors."
I have carefully studied this law and find that it provides no exemption for an operation of this type. It appears that the law does exempt fire trucks, farm tractors, non resident farmers. However, there is no provision for exempting a truck pictured in the enclosure.
It is noted in the description of this truck that I have enclosed that it states that it is a 15 ton capacity. In view of the above, it is my opinion that these trucks operating on the super highway for the MacDougald Construction Company are liable for license tags.
PUBLIC REVENUE-Motor Vehicle License Tax (Unofficial) Municipalities may not levy an additional tax on motor vehicles, but may, if right is granted by charter, impose a business or privilege tax.
Honorable S. W. Jackson, Jr.
December 8, 1949
In addition to the information I gave you in my letter of December 2nd,
regarding the charging of license fees or taxes by municipalities against motor vehicles in Georgia, I wish to submit the following for your consideration.
Question: Do municipalities have a right to charge an additional license
fee on motor vehicles? The taxing power of a municipality is derived from its charter. In other
words, city ordinances must be backed by a power contained in the city's charter.
The Legislature in 1927 passed a general law which states in part:
"Nothing herein shall prevent incorporated cities and towns from requiring by ordinance the owners of motor vehicles residing within the incorporated limits of said cities or towns to register the numbers of State licenses with
the clerk of council or other officer to be designated by such city or town, together with a brief description of such motor vehicle, and said incorporated cities
or towns shall have the power to provide a penalty for the violation of such
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ordinance: Provided, that no additional license fee shall be charged by any municipality." Code Section 68-312.
In 1933 the City of Savannah passed an ordinance by virtue of its general charter power to tax businesses and which provides that the City of Savannah shall have full power and authority to regulate the use of its streets for business purposes, and no person, firm or corporation shall have the right to use the streets of the said City of Savannah for business purposes without having obtained the consent of the Mayor and Aldermen of said City.
In an attempt to have this ordinance enjoined, one of the major attacks on it was that it violated the general law provided for in Code Section 68-312 quoted above.
The Supreme Court of Georgia in holding that the ordinance was sound made the following technical differentiation. The Savannah ordinance imposing a tax upon the use of the streets for business purposes did not violate Code Section 68-312, which states:
"No additional license fee shall be charged by any municipality for the operation of a motor vehicle in the State."
This ordinance places no license or tax upon motor vehicles or the opera tion thereof. The Court further held that the ordinance was strictly a business or privilege tax, and not a tax upon the vehicles specified in the ordinance or their operation.
In other words, the Supreme Court is simply saying that the municipalities cannot compound an additional license fee upon motor vehicles, but if the City charter provides the power and authority to regulate the use of its streets for business purposes, it is permissible for the City to levy an additional business or privilege tax on motor vehicles.
In determining whether a municipality has the power to levy such a tax similar to that of the City of Savannah, it is imperative to study the city charter. It would appear to me that a satisfactory method of handling this question would be to point out the above information and then refer the matter to the City Attorney for his study.
PUBLIC REVENUE-Motor Vehicle License Tax A vehicle licensed under Code Sec. 92-2902 (17) may take on and put off passengers at points between the beginning and the terminus of the 20mile route between a point in this State and a point within a military reservation.
December 12, 1949 Honorable W. L. Joiner, Assistant Director Motor Vehicle License Unit
I am pleased to acknowledge receipt of your letter requesting my official opinion on the question of whether a carrier who has purchased a license plate under the provisions of Code Section 92-2902, subsection 17, of the Annotated Code of Georgia of 1933, is permitted to take on and put off passengers between a point in the State and a point within a United States military reservation.
The above referred to Code Section reads as follows: "92-2902. Annual fees for operating motor vehicles.-The annual fees for
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the licensing of the operation of vehicles shall be as follows for each vehicle registered:
"(17) U. S. military reservation carrier. For each motor vehicle used by carriers and operated over a route of not more than 20 miles in length, and solely between a point in this State and a point within a United States military reservation in this State, under special franchise granted by the United States War Department, the sum of $2.50."
It is my opinion that the above quoted Code Section authorizes the carrier to take on and put off passengers at any point within the twenty-mile fixed route. Had the Legislature intended to restrict the carrier to the picking up and discharging of passengers, either destined for or departing from a military reservation within the twenty-mile limit, they would have so stated.
The reference to a point to point operation not to exceed twenty miles in length simply fixes a maximum distance for operation over a fixed route. I cannot read into this statute a formula for picking up and discharging passengers between the fixed points. Since it is unambiguous we must accept the languaw~ as we find it without reference to what the Legislature intended.
PUBLIC REVENUE-Occupation Tax A carbonic acid gas tax is a license tax.
February 11, 1949 Mrs. Mildred L. Brantley Ordinary, Hanco*ck County
I am pleased to acknowledge your letter of January 29, 1949 in which you requested my opinion as to whether carbonic gas tax is an occupational tax.
As you know, the Attorney General is prohibited by law from rendering Qfficial opinions to anyone except the Governor and the heads of the various departments of the State; therefore, these remarks are to be considered purely Qf a personal nature.
Paragraph 32 of the General Tax Act, Code Section 92-805, provides as follows:
"Carbonic Acid Gas, Soft Drinks. Each person, firm, or corporation engaged in the business of manufacturing or vending soft drinks made of or containing carbonic acid gas or any substitute therefor shall pay, as a privilege license to carry on such business, four cents on each pound of carbonic acid gas, or any substitute so used. Provided, that bottled drinks on which this license shall have been paid may be resold in original packages without the payment of further license, under this schedule. Each person, firm, or corporation engaged in such business shall keep accurate books and invoices showing the quantity of carbonic acid gas or any substitute therefor used in such business, and such other information relating to the business as may be required by the Comptroller (now Revenue Commissioner), to enable the State tax offi> cials to check by the returns herein required. At the end of each calendar quarterly period every person, firm, or corporation engaged in such business shall make a report to the Comptroller General (now Revenue Commissioner) on blanks to be furnished by the Comptroller-General (now Revenue Commissioner), showing the amount of carbonic acid gas or other substitute therefor consumed during the preceding quarter, and such other information as the ComptrollerGeneral (now Revenue Commissioner) may require, verified by affidavit, an'.l
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shall with the report remit the license herein provided for each pound of carbonic acid gas or other substitute therefor consumed, as shown by the report, and such remittance shall be paid into the State Treasury. If such report or remittance is not made within fifteen days after the end of the calendar quarter, there shall be added to the sum due for such license for the preceding quarter 10% additional license. The tax officials of the State shall have authority to examine the books and papers of any one engaged in such business, for the purpose of ascertaining the correctn6ss of all reports and remittances. Any person wilfully failing or refusing to make the reports and remittances herein required shall be guilty of a misdemeanor, and any person wilfully making a false affidavit as to any report herein required shall be guilty of perjury."
From the above, carbonic gas tax, in my opinion, is a license tax.
PUBLIC REVENUE-Occupation Tax A cash register company maintaining a repair and service office, but also making sales of registers, is liable for occupation tax.
April 15, 1949 Honorable W. Harvey Atkinson, Director Property & License Tax Unit
I am pleased to acknowledge your letter of April 14th in which you requested my opinion as to the liability of the Nati~nal Cash Register Company, under the General Tax Act, Code Section 92-1301, in Clarke County.
As you know, we discussed this matter in November and at that time the facts appeared to be that the Cash Register Agency in Clarke County did take orders and had several recently recorded sales contracts in that county. I note on April 12th the manager of the Cash Register Company takes the position that he has merely a service office and does not make any sales whatsoever.
Paragraph 67 of the General Tax Act, Code Section 92-1301, provides: "Cash or account registers.-Each manufacturer, or wholesale or retail dealer in, or agent for the sale of, any cash or account register, shall pay $100 for each place of business in this State." As you can see, there is a discrepancy in the facts in this matter. If the facts are that the Cash Register Company has an office which renders service and repairs, and in connection therewith makes sales, even though they do not keep cash registers in stock, they are clearly liable for this occupation tax. In this connection, please see Cook vs. Pa.rke-Davis, 198, Ga. 457. On the other hand, if the facts are such that they operate merely a repair shop and render service, and no sales whatsoever are made out of this office, then, obviously, they would not be liable for the tax. The Tax Collector of Clarke County will have to determine the facts in this case, and if the facts are such that sales are being made, then the company would be liable. If no sales are made, they would not be liable.
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PUBLIC REVENUE-Occupation Tax (UnoffiCial) A company placing coin-operated radios in hotels is subject to an occupation tax.
August 5, 1949 Hon. J. Archie Johnson, Tax Collector Chatham County
I regret the delay in answering your letter, but our office has been unduly taxed this Summer by investigations and the General Assembly, coupled with an unusually heavy court calendar.
The question you have presented to me is whether the Radio-Matic of America, Incorporated is liable under the General Tax Act for occupation tax for radios placed in hotels which are operated by a twenty-five cent coin placed in a slot in said radios.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
As you know, Code Section 92-1303 provides: "Picture and music slot machines.-There shall be levied upon each slot machine wherein any picture may be seen or music may be heard by depositing in said machine any coin or thing of value, and each weighing machine or scale, and every machine making stencils by use of contrivances operated by slot, wherein coin or other thing of value is to be deposited or used, the deposit of coin or other thing of value not exceeding one cent per operation, a tax of $1 for each machine where kept, set up, used, or operated. On all machines described in this section, charging more than one cent per operation, a tax of $5 shall be levied for each machine where kept, set up, used, or operated. On all other machines described in this section, charging more than one cent per operation, $5 for each machine where kept, set up, used or operated." After a careful reading of the above Code Section, it appears to me that such machines are clearly liable for occupation tax. By placing the coin in the machine, it comes under the category of a slot machine, and as a result of placing a coin in the machine, music or radio programs are heard. Of course, it may be well argued by the Radio Corporation that it is not the intent of this Section to tax radios since other type programs are available, such as news reports, sporting events, etc. However, it is my opinion that such machines would come under this Code Section.
PUBLIC REVENUE-Occupation Tax A tax on a manufacturer and wholesaler of ice cream is an occupation tax payable on each place of business at a rate measured by the location of its physical plant.
September 9, 194H Honorable W. Harvey Atkinson, Director Property and License Tax Unit State Revenue Department
This will acknowledge receipt of your letter of August 24, 1949, in which you ask my official opinion upon the following question:
Would a manufacturer and a wholesaler of ice cream be liable for the tax
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outlined in Section 92-1002 in every county in Georgia where they do business, and if they are not subject in every county in the State, in what county would they be liable for the wholesale tax or the manufacturing tax on ice cream?
Section 92-1002 of the Code of Georgia of 1933 provides as follows: "92-1002. Ice cream dealers.-Each person, firm, or corporation manufacturing ice cream or selling same at wholesale, in or near cities of more than 50,000 inhabitants, shall pay $100; in or near cities of from 20,000 to 50,000 inhabitants, $75; in or near cities of from 10,000 to 20,000 inhabitants, $50; and in or near cities of less than 10,000 inhabitants, $10: Provided, that the word 'near,' as used in this section shall be construed to mean within a radius of three miles of the corporate limits of cities in this section referred to." One of the basic rules of construction of revenue laws is that tax acts, including acts imposing taxes on occupations, are strictly construed against the Government and in favor of the taxpayer. Therefore, it is my opinion that the above provision of law imposes an occupational tax on the person, firm or corporation manufacturing or selling at wholesale ice cream, at a rate of tax measured by the location of the physical plant of such business. In other words, for each place of business established which sells at wholesale or manufactureo; ice cream, the tax is imposed on the person, firm or corporation operating the same, according to the location of the place of business. The manufacture of ice cream and the sale of ice cream at wholesale would necessitate certain equipment for the making, preservation and handling of the product, and where there are one or more such businesses operated by a person, firm or corporation, each business would be subject to tax, to be paid to the tax collector of the county where the business is located, as provided under Section 92-2104 of the Code of Georgia of 1933.
PUBLIC REVENUE-Occupation Tax (Unoffieia;J) Taxes are payable on the first of the year and a corporation comm~:;ncing business after July 1st is liable for 50 percent of the yearly taxes.
Honorable Edward B. Liles County Attorney
November 30, 19MJ
I am pleased to acknowledge your letter of November 12, 1949 in which you requested an opinion as to how the occupation and license tax under Code Section 92-2401 is prorated.
This license or occupation tax is found in the General Tax Act contained in Georgia Laws, 1935, Paragraph 43, page 25. This paragraph of the General Tax Act is codified as Code Section 92-2401, and, as you know, has been amended several times. On page 70 of the Georgia Laws, 1935, Section 21, we find a paragraph which says in effect that all taxes imposed under the General Tax Act are paid annually on January 1st in each year, and Section 20 states that if the corporation commences business after July 1st, it shall be liable for 50% of the taxes imposed for the entire year. These two sections of the General Tax Act have been codified as 92-304 and 92-305.
The above sections are general sections and refer to all taxes levied under the General Tax Act of 1935. Therefore, it is not necessary for such provisions to be placed after each and every particular tax levied in this act.
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I hope this clarifies the matter for you, and if I can be of any further assistance to you, do not hesitate to call on me.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
PUBLIC REVENUE-Personal Property Exe.mption This exemption applies to State, county, municipal and school district ad valorem taxes, including taxes for payment of principal and interest of bonds issued by governmental instrumentality.
October 4, 1949 Honorable W. Harvey Atkinson, Director Property and License Tax Unit
This will acknowledge receipt of your letter of September 26, 1949, in which you state as follows:
"I am in receipt of a letter from Commissioner of Roads and Revenues of Marion County in which he requests a firm ruling from your department.
"The question has arisen in the minds of the taxing officials of Marion County as to whether or not the exemption of personality as set forth in Code Section 92-239 shall be exempt from ad valorem taxes on bonds issued by its taxing jurisdiction."
The Constitution of 1945, under Section 2-5404, provides for personal property exemption as follows:
"All personal clothing, household and kitchen furniture, personal property used and included within the home, domestic animals and tools, and implements of trade of manual laborers, but not including motor vehicles, are exempted from all State, County, Municipal and School District ad valorem taxes, in an amount not to exceed $300.00 in actual value."
The Act approved January 31, 1946 (Ga. Laws 1946, pages 12, 15) passed pursuant to the Constitution of 1945 and as relates to personal property exemption is in the exact language of the constitutional provision (paragraph (b) oJ' Section 1, page 13 of the Act).
The Constitution of 1877, as amended, provided for personal property exemption as follows:
"There is hereby exempted of owners, beginning January 1, 1938, from all ad valorem taxation, State, county, municipal, and school district, all clothing, household, and kitchen furniture and all other personal property except as hereafter excepted, not to exceeod $300 in actual value: Provided the person or persons herein entitled to exemption shall register such exemption of personality, giving a full description thereof, upon such forms, terms and manner as shall be prescribed by the General Assembly of Georgia: Provided further that the value of the property in excess of said exempted personal property shall be subject to taxation, as now or hereafter provided by law. The words 'personal property' or 'personality' wherever used in this bill, shall be defined as personal property used and included solely within the home, domestic animals, tools and implements of trade of manual laborers. This exemption shall not include motor vehicles."
As will be noted, the Constitution of 1945 made no material change in the law relating to personal property tax exemptions. The Supreme Court rendered
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a decision construing the personal property tax exemption provision of the Constitution of 1877 in the case of Campbell vs. Red Bud Consolidated School District et. al., 186 Ga. 541-548 at page 547, in which it held:
"Consequently the amendment (of Article 7, Section 2 of the Constitution of Georgia, Ga. Laws 1937, page 38, Ga. Laws 1937-38, Ex. Sess., pages 176-179) is to be construed as exempting the personal property as therein provided from taxation for all purposes from and after January 1, 1938. This will include exemption from ad valorem taxation for payment of principal and interest on a proposed bonded indebtedness of a consolidated school district (a political division of the State) incurred for the purpose of building a schoolhouse."
Section 92-240 through 92-249 of the Code of Georgia of 1933, Annotated Pocket Part, provides when and how application for personal property exemption shall be made, and any person not meeting the requirements of law as set out in said sections would not be entitled to the personal property exemption. The sections of the Code referred to were codified from Acts passed prior to the 1945 Constitution, but are preserved by a provision contained therein as follows:
"Third: In subordination to the foregoing: All laws now of force in this State, not inconsistent with this Constitution shall remain of force until the same are modified or repealed by the General Assembly."
It is therefore my opinion that where a person meets all other requirements of law, he shall be entitled to the exemption on personal property for State, County, Municipal and School District ad valorem taxes, including taxation for the payment of principal and interest on bonds issued by an instrumentality of government, not to exceed $300.00 in actual value as provided under the Constitution of 1945.
PUBLIC REVENUE-Stamp Tax A chain store distributing cigarettes only to its own retail stores is not a wholesaler, and therefore is not entitled to discount on purchase of tobacco stamps.
August 10, 1949
Honorable Charles D. Redwine State Revenue Commissioner
In reply to your letter of August 1, 1949, requesting an opm10n regarding a chain store operator claiming that he is not only a retailer but a distributor of cigarettes, I will refer you to Section 12 of the Cigar and Cigarette License Tax Act as amended at the 1949 Extra Session of the General Assembly, which reads as follows:
"Section 12. Discounts allowed for handling stamps. The State Revenue Commission is hereby authorized and directed to have prepared and distributed stamps suitable for denoting the tax on all articles enumerated herein. Any person, firm, corporation or association of persons, other than the State Revenue Commission, who sells tobacco tax stamps, not affixed to tobacco sold and delivered by them, whether the said stamps be genuine or counterfeit, shall be guilty of a felony and punishable as set out in Section 18 (a) of this Act. When wholesalers, jobbers or distributors have qualified as such with the State Revenue Commission as provided in Section 14 of this Act and desire to purchase stamps as prescribed herein for use on taxable tobacco sold and delivered by
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them, the State Revenue Commission shall allow on such sales of tobacco tax stamps the following discounts:
"On a sale of $100 or over and less than $200, a discount of 3% on the entire amount of the sales; on a sale of $200 or more, a discount of 5% on the entire amount of the sale.
"Every wholesaler, jobber, or distributor purchasing stamps as herein described, shall be required to make a full and complete accounting on or before the tenth of each month for all stamps used on taxable tobaccos during the preceding month. Every wholesaler, jobber or distributor refusing or failing to comply with this section shall forfeit the commission or discount on stamps purchased in the future."
You will note that as a prerequisite to being entitled to the discount, the wholesaler, jobber or distributor must first qualify with you as such, as provided in Section 14 of these Acts.
The word "distributor" is used with and is synonymous to wholesale dealers and jobbers in every instance that it is mentioned in these Acts. Therefore, the only construction or interpretation that can be placed upon the word "distributor," as it is used in these Acts, is that such distributor deals in cigarettes as a wholesaler and not as a retailer.
If any chain store operating in the State of Georgia also maintains and operates a warehouse for the storage and distribution of goods and wares to its various retail stores and does not distribute or sell at wholesale to any other store or stores other than those in its chain, I am of the opinion that it should not be classified as a wholesaler, jobber or distributor, and in that event would not be entitled to the discount provided for in the purchase of cigarette stamps, as its principal business is that of retail and not as a distributor.
PUBLIC REVENUE-Stamp Tax Unstamped cigars, cigarettes, etc., received in or brought into the state, in excess of prescribed quantities, must immediately be stamped and reported to the Revenue Department.
October 17, 1949 Honorable Henry G. Neal Knox and Neal Attorneys At Law
I am pleased to acknowledge your letter of October 8'th with reference to whether or not an individual can purchase cigarettes for his own consumption from a concern without the State and upon which no State taxes have been paid.
Code Section 92-2280 of the Code of Georgia of 1933, Annotated Pocket Part, reads as follows:
"92-2280. Stamping tobacco products received for personal use.-Every person receiving, holding, or possessing, withiJ:] this State, for his own personal use, or the personal use of members of his family, or who brings into this State, for his personal use in this State, or the use of the members of his family in this State, any cigars, cheroots, stogies, cigarettes, or any substitutes therefor, taxable under this Chapter, and not stamped as required by this Chapter, shall, within one hour after receipt of such products, or after having acquired possession thereof, or after having brought the same within this State, as the
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case may be, and before the same, or any part thereof, are used or consumed, cause the same to have the requisite denomination and amount of stamps to represent the tax due thereon, affixed as stated and required by the terms of this Chapter, and to cause said stamps so affixed to be cancelled by w.< tinr; o. stamping across the face of each stamp the name of the person so receiving o1 holding such tobacco products, or bringing the same into this State, as the case may be, with the date and hour when the cancellation is made, and in addition thereto such person shall, within six hours after receipt of such tobacco products, or after having brought the same into this State, or after having acquired possession thereof, as the case may be, notify the State Revenue Commission, in writing by mail, of such fact or facts, stating the time when such tobacco products were received, or brought into this State, or when possession thereof was acquired in this State, and from whom such tobacco products were acquired. The possession of unstamped cigars, cheroots, stogies, cigarettes, or any substitute therefor by any person in this State, acquired or held for use or consumption, in excess of the quantities or not under the circ*mstances set out in sections 92-2278 and 92-2279, shall be prima facie evidence that such tobacco products were brought into this State, or received therein, or are held and possessed in this State in violation of this Chapter, and for the purpose of evading the payment of the tax levied by this Chapter."
From reading the above quoted Code Section, you may readily see that anyone who receives untaxed cigarettes must immediately procure tax stamps for such cigarettes, and also the possession of unstamped cigarettes in excess of four packages shall be prima facie evidence that such cigarettes are held and possessed for the purpose of evading the payment of the tax.
Code Section 92-9951 provides that anyone who evades any tax, license, penalty, interest or other amount due the State shall be guilty of a misdemeanor and punished for such as provided by law.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
PUBLIC REVENUE-Tax Collectors (Unoffic:al) Commissions cannot be paid to tax collectors and receivers until the funds are actually in the hands of the collector.
October 24, 1949 Miss Eva Stephenson Tax Receiver,. Newton County
In reply to your recent letter, I will cite you to the case of, Clements, tax receiver, et al. vs. Peeriless Woolen Mills, 197 Ga. 296 (1), which reads as follows:
"1. Tax receivers and tax collectors have no vested rights in commissions for the collection of taxes until the taxes have been actually collected."
In view of this decision, I am of the opinion that the tax receiver has no vested interest in the tax funds until they are actually collected. Therefore, the commissions could not be paid until said amounts are actually collected and in the hands of the tax collector.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
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PUBLIC REVENUE-Tax Receivers (Unofficial) The adjudication by an ordinary of a tax receiver as insane creates a vacancy in the office.
October 20, 1949 Honorable George H. Carswell, Ordinary Wilkinson County
In re: Vacancy in office of Tax Receiver. This is to comply with your request in the above stated matter. You state in your letter as follows: "Our Tax Receiver, Jack G. Hatfield, was duly adjudged insane and was committed by me, as Ordinary, to the Milledgeville State Hospital on the 3rd day of September, 1949. "What I am undecided about is whether or not the judgment of the Court of Ordinary committing Mr. Hatfield to the Milledgeville State Hospital is a judgment of a court of record declaring his office vacant within the meaning of the law, or whether it will be necessary to bring some other proceeding based on the fact that he is now insane and have a special judgment declaring his office vacant." Please allow me to call your attention to Code Section 89-101, Georgia Code Annotated, 1933, which reads as follows: "Persons Ineligible; Defacto Officers.-The following persons are held and deemed ineligible to hold any civil office, and the existence of any of the following states of facts shall be a sufficient reason for vacating any office held by such person, but the acts of such person, while holding a commission, shall be valid as the acts of an officer de facto, viz: "1. Non residents and minors.... "2. Holders or receivers of public money; failing to account.... "3. Persons convicted of felony.... "4. Holding another office. . .. "5. Insane or incapacitated persons. Persons of unsound mind, and those who, from advanced age or bodily infirmity, are unfit to discharge the duties of the office to which they are chosen or appointed...." See also Section 89-501, as follows: "Offices, How Vacated.-All offices in the State shall be vacated,"1. Death.-By the death of the incumbent. "2. Resignation.-By resignation, when accepted. "3. Judgment.-By decision of a competent tribunal declaring the office vacant. "4. Incapacity.-By voluntary act or misfortune of the incumbent, whereby he is placed in any of the specified conditions of ineligibility to office, which shall operate from the time the fact is ascertained and declared by the proper tribunal. "5. Nonresidence.... "6. Failing to obtain commission or give bond.. "7. Abandonment of office. . .." It would seem to me that under the facts as stated in your letter, and after consideration of the above mentioned Code sections, that a vacancy now exists in the office of Tax Receiver of your county. Certainly, the Court of Ordinary is the proper tribunal to pass upon a man's sanity. However, for the sake of the record, it probably would be a better practice for the Ordinary of
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your county to pass an order declaring that a vacancy now exists by reason of the fact that the incumbent is now insane and incapacitated to act. However, if there should be any doubt in your mind about this being sufficient, you might file a petition with the Judge of the Superior Court, setting up the facts that the Tax Receiver has been declared legally insane, and ask the Judge of the Superior Court to pass an order declaring a vacancy to exist. I am of the opinion, however, that an order of the Ordinary declaring a vacancy would be sufficient.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
PUBLIC REVENUE-Tax Receivers (Unofficial) A tax receiver may serve as Clerk of the Board of Assessors.
Mrs. J. L. Thompson Tax Receiver
March 21, 1949
I regret the delay in answering your letter, but due to the changes in the personnel of my staff and the meeting of the General Assembly, I have gotten somewhat behind.
As you know, the Attorney General is prohibited by law from rendering official opinions to anyone except the Governor and heads of the various departments of the State. This information is, therefore, my personal views and binding on no one.
I have diligently searched the duties of the Tax Receiver and the Code provisions for public officers in general and I can find nothing that will prohibit you from serving as Clerk for the Board of Assessors of your county.
PUBLIC REVENUE-Tax Receivers (Unofficial) Tax Receivers may receive returns in any building in the militia district after due notice.
Honorable Lloyd Stepp Tax Receiver, Fannin County
November 14, 19491
In answer to your letter of November 7, 1949, I will call to your attention Section 92-4611 of the Annotated Code of Georgia of 1933, which reads in part as follows:
"92-4611. Duties of receivers enumerated.-It shal~ be the duty of the tax receiver . . . ,
"3. To give 10 days' notice in writing of the several times and places at which he will attend in the several militia districts of the county, for the purpose of receiving tax returns.
"4. To attend at such places at least three times during the period allowed for making returns."
According to the language of the Code Section above quoted, I am of the opinion that you have the right to receive tax returns in any building within
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the various militia districts after proper notice is given in compliance with the above quoted Code Section.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
PUBLIC SAFETY-Department of Public Safety (Unofficial) 1. Sets out provisions of Act in nature of building code. 2. Sets out enabling statutes authorizing local units of government to promulgate, administer and enforce local building codes.
March 4, 1949 Honorable Raymond M. Foley, Administrator Housing and Home Finance Agency
In your letter of February 17, 1949, you ask certain questions and request certain references and materials pertaining to Georgia building codes and regulations, and the administration of them.
In your first question you request citation to the statutes establishing or providing for the promulgation, administration and enforcement of the State building Code, if the State has such a code.
The nearest provision the State of Georgia has for a building Code is an Act of the Legislature in its 1949 session, which Act was signed several days ago by the Governor. It will be some while yet before this Act will be generally available in printed form and incorporated in published editions of Georgia laws and codified. It is now described as House Bill No. 86, and repeals and supplants the "Georgia Building Safety Law" (Ga. Laws 1947, pages 1452 et seq., and codified in Georgia Code Annotated Supplement 92A-7).
For your information I will outline a few of the pertinent provisions of this Act:
It creates the office of Georgia Safety Fire Commissioner and names the Insurance Commissioner, ex officio, as such, and charges him primarily with the enforcement and interpretation (subject to the courts) of this law, but allows him in his discretion to delegate certain duties and powers.
The Commissioner appoints a State fire marshal, who in turn appoints :a deputy, State inspectors, local fire marshals, etc.
I wish particularly to call your attention to Section 8 which seems to define the type buildings involved throughout this Act, and I quote:
"The Commissioner may promulgate reasonable rules and regulations embodying the fundamental principles of the Building Exits Code (American Standard Association, 1948 edition), dealing with exits, fire resistive partitions retarding the spread of flame and gas both vertical and horizontal, fire prevention installations and all other such devices for the protection of life. These regulations, as to this section, shall include the following classes of buildings or structures, both new and existing: (1) All buildings or structures more than three stories in height; (2) All buildings or structures having an occupancy either theoretical or actual of a total of 75 or more persons on floors other than the first or ground floor; (3) All buildings or structures having a total occupancy of more than 200 persons; (4) All buildings or structures having a gross area on any one floor of 22,500 square feet; and ( 5) All of the following buildings; Hotels, apartments or multi-family houses over two stories in height, dormi-
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tories, convents, monasteries, churches, schools, colleges, universities, academies,
hospitals, sanitariums, insane asylums, orphanages, reformatories, jails and
prisons, theaters, motion picture theatres, public assembly halls, lecture halls,
auditoriums, dance halls, recreation halls, armories, stadiums and grandstands,
amusem*nt park structures; provided all buildings used exclusively for agricul-
tural purposes outside of incorporated areas are exempt from the above classi-
fication."
Section 14 provides that the Commissioner may promulgate reasonable rules
and regulations embodying the fundamental principles of the National Electric
Code, Volume 5, National Fire Protective Association, 1947, as applicable to
buildings and their facilities covered in the various sections of this Act.
By Section 15 the Commissioner may set up standards for flame-proofing,
fire escapes, fire prevention equipment, devices, etc. He shall also set up stand-
ards covering the various facilities used in the construction of new buildings and
the repair and maintenance of such facilities in existing buildings.
By Section 30 it is declared that this Act is necessary for the public safety,
health, peace, and welfare, is remedial in nature, and shall be construed liberally.
If any part or section of this Act should be declared unconstitutional, it is
the legislative intent that the remaining portions should remain effective.
As this new Act seems to contemplate just those types of houses or build-
ings as set forth in Section 8 above, which I gather are types generally without
the scope of your present inquiry, I will not, until further request from you,
attempt at this time to answer fully the (a) and (b) parts of your Question 1.
In part answer however, I may say that under Article III, Section 1,
Paragraph I of the State Constitution (Georgia Code Annotated, Section
2-1301), the legislative power of the State is vested in the General Assembly
which consists of a Senate and a House of Representatives. While the General
Assembly cannot delegate powers, it may confer upon administrative bodies
power to deal in a somewhat legislative way with quasi-legislative matters. An
administrative body created by Act of the Legislature has only such powers
as are E>xpressly or by necessary implication conferred upon it. Bentley v.
State Board of Medical Examiners, 152 Ga. 836 (1) (111 S. E. 379).
The Constitutional section cited above does not prevent grant of legislative
authority to an administrative Board or other tribunal to adopt rules, by laws,
or ordinances for its government to carry out a particular purpose. Bohannon
v. Duncan, Director, 185 Ga. 840, 843 (196 S. E. 897).
In regard to the delegation of legislative powers by the General Assembly,
the Georgia Code cites: Zuber v. Southern Railway Co., 9 Ga. Appeals 539 (3)
(71 S. E. 937); Maner v. Dykes, 55 Ga. Appeals 436 (190 S. E. 189); William-
son v. Housing Authority of Augu,sta, 186 Ga. 6'73, 674 (4) (199 S. E. 43);
DeJarnette v. Hospital Authority of Albany, 195 Ga. 189, 190 (2) (23 S. E. 2d
716).
Article I, Section V, Paragraph I of the State Constitution, Georgia Code
Annotated, Section 2-501, states:
"The people of this State have the inherent, sole and exclusive right of regulating their internal government and the police thereof, and of altering and abolishing their Constitution whenever it may be necessary to their safety and happiness."
Article IV, Section II, Paragraph II of the State Constitution, Georgia Code Annotated, Section 2-2502, states:
702
"The exercise of the police power of the State shall never be abridged, nor so construed as to permit the conduct of business in such manner as to infringe the equal rights of others, or the general wellbeing of the State."
It seems that the only requirement by which the General Assembly is bound in its exercise of the police power of the State is that in selecting an instrumentality to achieve legitimate ends, it must choose a means, or an agency, or method that is reasonably suited or adapted to accomplish the purpose. Regulations must not be arbitrary and must not be capriciously founded. Georgia Railway & Power Co. v. Railroad Com1mission of Georgia, 149 Ga. 1 (98 S. E. 696).
In regard to the (b) part of Question 1, as House Bill No. 8'6 described above, has just been passed, there have been, of course, no court decisions involving it.
There are also several State statutes relating to fire escapes, fire doors, etc.: Georgia Code Annotated, Section 52-205 and Sections 54-402 to 54-405.
In your second question you ask for citations to the applicable statutes if the States does not have a State Building Code as such, but exercises its police power through State officers to any extent in the regulation of building construction. (For example, fire, health, plumbing, electrical installations).
Generally speaking, other than the new Act discussed above, I find no indication that the State exercises its police powers through State officers in the regulation of building construction. I might point out, however, that the States does have a Housing Authorities Law (Georgia Acts of 1937, pages 210, 211; Georgia Code Annotated Supplement, Chapter 99-11), and a Housing Cooperations Law (Georgia Acts 1937, page 697; Georgia Code Annotated Supplement, Chapter 99-12). To the extent that these laws have been tested by the courts, their constitutionality seems to have been upheld. Williamson v. Housing Authority of Augusta, supra; Stegall v. Southwe.st Georgia Housing Au~hority, 197 Ga. 571 (30 S. E. 2d 196).
Insofar, however, as building regulations under these laws are concerned, all housing projects shall be subject to the planning, zoning, sanitary and building laws, ordinances and regulations applicable to the locality in which the housing project is situated. Georgia Code Annotated Supplement, Section 99-1120.
It seems to have been held that these Housing Laws do not delegate to dties and counties powers which are nondelegable legislative powers in violation of Article III, Section I, Paragraph I of the State Constitution. WiLliamson v. .Housing Authority of Augusta, supra.
In your third question you ask for citations to the enabling statutes and :amendments authorizing cities or other local units of government to promulgate, :administer and enforce local building codes.
I first call your attention to Article III, Section VII, Paragraph XXIII, Georgia Code Annotated, Section 2-1923, which states:
"The General Assembly of the State shall have authority to grant the governing authorities of the municipalities and counties authority to pass zoning and planning laws whereby such cities or counties may be zoned or districted for various uses and other or different uses prohibited therein, and regulating the use for which said zones or districts may be set apart, and regulating the plans for development and improvements on real estate therein."
The Legislature of Georgia, by Acts of 1946, page 191, codified in Georgia Code Annotated Supplement, Chapter 69-8, did grant to municipalities certain powers in regard to zoning and planning. As far as I can ascertain at the
703
present time, the constitutionality of this Act has not been contested. The powers granted in this Act are in addition to all other powers which then appertained to the authority of each municipality in this State.
I am inclined to believe that the building codes to which your inquiry pertains may not be totally within the scope of the zoning and planning authority which has been granted to municipalities by the foregoing constitutional and statutory provisions.
To the extent, therefore, that municipalities desire to promulgate and enforce building .codes and regulations which are not within the scope of the above provisions, their authority so to do must come from other enabling statutes.
In this regard I wish to point out that Georgia cities and towns are governed by charters which are granted in the first instance, and are altered, amended and repealed by special Acts of the General Assembly. These must be consulted to determine the rights, powers and privileges, the limitations and restrictions, and the governmental organization of these corporations. A few common law principles applicable to these corporations, as well as additional principles determined from decisions, have been codified. A few other provisions have been added by statute. In large measure, however, each city and town is governed and controlled by its own code of laws contained in its own charter.
The powers which a city government may lawfully exercise must be derived from its chartE:r or the general laws of this State. Town of Mcintyre v. Baldwin, 61 Ga. Appeals 489 (6 S. E. 2d 372).
It has been held that a municipal corporation possesses, and can exercise, the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied; third, those essential to declared objects and purposes of corporation-not simply convenient, but indispensable; and any fair, reasonable doubt concerning existence of power is resolved by courts against a municipal corporation. Jewel Tea Co. v. Augusta, 59 Ga. Appeals 260 (200 S. E. 503).
As a general rule, municipal corporations cannot, under a general welfare clause, exercise powers other than those which are necessarily .or fairly to be implied from or incident to its express powers, and those which are indispensable to the purposes for which the corporation is created. Watson v. Mayor and Council of Thomson, 116 Ga. 546, 547 (42 S. E. 747).
It appears to have been held that the right to exercise police power may be delegated by the State to a municipal corporation created by the State. Purvis v. City of Ocilla, 149 Ga. 771 (1a) (102 S. E. 241).
See also: Mayor and Council of Americus v. Perry, 114 Ga. 871 (2) (40 S. E. 1004); Harris v. McMillan, 186 Ga. 529 (198 S. E. 250).
In the case of Felton v. City of Atlanta, 4 Ga. Appeals 183 (1) 1 it vwas held that plumbing is a business which affects public health and is therefore subject to regulation under police power.
From time to time, the Legislature has passed Acts authorizing counties having certain populations, which in effect limits the effectiveness of the Act to particular counties, to enact zon~ng, planning and building laws. As for example, Georgia Acts of 1937, page 748; Georgia Acts 1937-38 Ex. Sess., page 414; Georgia Acts 1939, page 245, page 368, page 403; Georgia Acts 1946, page 203; Georgia Acts 1947, page 78.
It is apparent, therefore, from the foregoing that such building codes and
704
rules and regulations as are now in effect in this State, for the most part, vary with the several municipalities and counties throughout the State, and that inquiry would have to be made of these local units of government to get a complete picture of building codes now in effect throughout Georgia.
In your fourth question, you ask for a list of State departments and officers having jurisdiction over any phase of home construction, building codes and regulations.
In the discussion of the new Georgia Building Safety or Fire Law discussed at the beginning of this letter, I attempted to point out the State departments and officers having jurisdiction under this law. As yet, few, if any, appointments have been made under this new Act. I suggest, therefore, at a later date you contact the Insurance Commissioner, the Honorable Zack Cravey, for a list of officers having jurisdiction under the Act. You might also ask Mr. Cravey to forward you copies of the law and any other available material printed in pursuance thereof which is in any way related to State and local building codes.
As Attorney General, I am prohibited by law from rendering official opinions to anyone other than the Governor and the heads of the various State departments upon matters pertaining to the interests of the State. Therefore, the opinions expressed in this letter are merely my own personal views on the subject, and of course are not to be considered official. However, I am glad to cite to you the provisions of law and my personal views regarding them as they may apply to your inquiry.
While I realize that the foregoing does not answer in detail every item of your inquiry, I felt it preferable not to delay any longer forwarding to you such information as I have, and I hope that it will be sufficient for your present purposes. If at a later date you desire additional or more detailed information, please communicate with me and I shall make every effort to furnish it to you.
PUBLIC SAFETY-Department o.f Public Safety (Unoffical) Sets out regulations covering sale of dynamite.
May 17, 1949 Honorable 0. D. Jones
This will acknowledge receipt of your letter of May 5th with further reference to the sale of dynamite as controlled and regulated under Chapter 88-8 of the Code of Georgia of 1933.
Under the law I cannot, as Attorney General, render official opinions to anyone except the Governor and heads of the various departments of State. However, pursuant to my letter of May 4th in which I enclosed you a copy of the law relating to the sale and possession of explosives, I am glad to give you the following information.
It is my personal opinion that a dealer may sell explosives to a perso11 properly licensed by the ordinary of the county of his residence when the license is produced and exhibited to the dealer. However, it would be unlawful for a person purchasing explosives enumerated under Section 88-801 of the Code of Georgia of 1933 to own, possess or control such explosives without first registering with the ordinary of the county of his residence or where he does business and obtain a license authorizing him to own:, possess or control the same
705
for a period of 90 days from the date of such registration in the county only where the same is registered.
In other words, for a dealer to comply with the law in the sale of dynamite, the person purchasing the same must produce and exhibit a license from the county of the purchaser's residence, while a license must also be had from the ordinary of the county where the dynamite is owned, possessed or controlled, as provided under Section 88-801, so as to avoid any penal liability provided under Section 88-9927.
I will admit that the law is somewhat confusing, but I believe this is the correct interpretation.
You ask whether or not you should require a license before the sale of either fuse or caps. It is a matter of fact whether fuse and caps come within the definition of "any other high explosive." It is my understanding that blasting caps (dynamite caps) are so constructed and filled with an explosive compound as would bring them within the definition, and therefore a license would be required by the purchaser before sale by the dealer.
It would, no doubt, be the safest practice to require a purchaser to produce and exhibit a license for both fuse and caps before a sale is made by the dealer.
PUBLIC SAFETY-Department of Public Safety The requirement that motorists shall stop while a school bus is loading or unloading is applicable on the Atlanta-Marietta four-lane highway.
May 26, 1949 Honorable George W. Wilson, Director Department of Public Safety
This is to acknowledge your letter of May 24, 1949 in which you seek an orinion as to whether or not the law requiring motorists to stop while a school lJus is loading or unloading children is applicable on the four-lane highway from Atlanta to Marietta.
Code Section 68-310 of the Code of Georgia of 1933 provides as follows: "Every person using, operating, or driving a motor vehicle upon or over the roads or highways, or upon or over any of the streets of any of the incorporated towns and cities, upon approaching any bus or other motor vehicle transporting school children to or from school, while such bus or motor vehicle is stopped and engaged in taking on or discharging such school children therefrom upon the roads or highways, or upon any of the streets of any of the incorporated towns and cities, shall bring such motor vehicle to a full stop before passing such school bus or other motor vehicle, and shall remain stopped until such school bus or other motor vehicle shall have completed at that place the discharging or taking on of school children." Code Section 68-9907 of the Code of Georgia of 1933 provides as follows: "Any person found guilty of violating any provision of section 68-310, relating to passing school busses taking on or discharging children, or of section 68-311, relating to signs on school busses and to stopping places for such busses, shall be punished as for a misdemeanor." Neither of the above Code Sections has been repealed by any Act of the Legislature. I am, therefore, of the opinion that this law would apply to the highway from Marietta to Atlanta.
706
PUBLIC SAFETY-Department of Public Safety The road conm:cting with Warm Springs Memorial is a private road and special speed limits may be fixed.
October 18, 1949 Honorable Lee S. Trimble, Secretary-Treasurer Franklin D. Roosevelt Warm Springs Memorial Commission
In reply to your letter of October 6, 1949, the speed limit for passenge;_ pneumatic tires is fifty-five (55) miles per hour on State roads or highways, and I find no law regulating speed otherwise.
However, I suggest that you contact the State Patrol in your immediate territory and have them to post signs stating that your road is a private road and regulate the speed limit accordingly.
PUBLIC SAFETY-Department of Public Safety A blanket order covering stop signs and intersections outside of municipalities would be sufficient in determining negligence in a civil action but would be insufficient to convict for violation of the statute.
December 14, 1949 Colonel George W. Wilson, Director State Department of Public Safety
I have your letter of December 2, in which you request my interpretation of the law authorizing the Depart~ent of Public Safety to fix rules in respect to right-of-way or erection of "stop" signs. With reference to this law you ask the following question:
"Would a blanket order covering all erected 'stop' signs at intersections be legal or would each intersection 'stop' sign have to be designated individually in such order by this Department, including the name, number and location of such intersections?"
Code Section 68-315 of the Annotated Code of Georgia, pocket part supplement, provides as follows:
"(a) The Department of Public Safety is authorized to fix rules in respect to right of way at intersections of said highways or public roads outside of municipalities and to promulgate other reasonable safety rules in respect thereto, and to give notice of same by proper signs erected at or near said intersections. Said signs to be erected and maintained by Highway Department maintenance department.
"(b) Every driver of a motor vehicle and every motorman of a street car shall stop at such stop signs as shall be erected or made by the Department of Public Safety at the approach of such intersections, except when directed to proceed by a police officer or traffic control signal."
Code Section 68-9920 of the Annotated Code, supplement, provides that the violation of the above Act shall be a misdemeanor.
In answer to your question, it is my opinion that a blanket order covering all erected stop signs at intersections would be sufficient in determining the question of negligence in a civil action. However, it is my opinion that an order of this kind would not be sufficient to convict a person for the violation of this statute.
It is my further opinion that in order to convict a person for the violation
707
of this statute, the Department of Public Safety in fixing rules in respect to stop signs would be required to be definite in the designation of the stop signs so authorized or erected. In promulgating and fixing such rules, it could be done in two ways, either by designating individually each stop sign as suggested in your letter, or a map or maps could be attached to your order designating each stop sign on the map, making said map a part of your order. I realize the impracticability of attaching one map to the order, due to the fact that the scale on an entire State map would be too small to designate each sign. Therefore, as a practical means of complying with this statute, I would suggest that maps of each county be used designating thereon the stop signs at the intersections outside of municipalities which are authorized by the Department under authority of this Act.
Either method herein suggested would be a sufficient compliance with this law.
PUBLIC SAFETY-Drivers Licenses ,"Seabees" and members of Coast Guard are eligible for Veterans Honorary Drivers Licenses; members of the Merchant Marine are not.
April 12, 1949 Honorable George W. Wilson Colonel-Director Department of Public Safety
This is to comply with your request for an official oprmon as to the application of the Act of the Georgia Legislature, known as the Veterans Honorary Drivers' License Act, approved February 25, 1949, as to members of the Merchant Marines, Seabees and Coast Guard. This Act provides for the granting of license to "veterans of the Armed Forces of the United States of America".
After careful consideration, I am of the opinion that members of the Construction Battalion, commonly referred to as the "Seabees", come within the Ad above referred to, and are entitled to honorary drivers licenses under this Act.
The United States Code Annotated, Title 14, Section 1, provides, among other things, as follows:
"Section 1. Establishment of Coast Guard; Control of Organization Generally; Cooperation With Navy. The Coast Guard as heretofore established in lieu of the Revenue Cutter Service and the Life Saving Service, existing prior to January 28, 1915, is continued. The Coast Guard shall constitute a part of the military forces of the United States ..."
I am, therefore, of the opinion that members of the Coast Guard would also enjoy the benefits of the Act of the Georgia Legislature above referred to.
In the case of Redding vs. City of Los Angeles et al, 185 Pac. Rep. 2d Series, pages 430 to 438, it is held that members of the Merchant Marine are not members of the "armed forces of the United States of America". The Court had this to say, at page 436:
"It contains no provision which makes the merchant marine a part of the military or naval forces but is confined to the declaration that 'it is necessary for the national defense and development of its foreign and domestic commerce that the United States shall have a merchant marine "
We also find this language, on page 436 :
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"On the contrary, the merchant marine is a voluntary organization whose functions and services are exclusively civilian in nature and may be terminated at the will of an enrollee."
Not only does the above quoted Section fail to make members of the Merchant Marine units of the armed forces, but no Federal Statute has been enacted to effect such purpose.
The Attorney General of New York, in an opinion requested by the New York Tunnel Authority held that employees of the merchant marine are not entitled to the benefits of that state's Military Law. (Opinions of the Attorney General of New York, 1942, page 395.)
I am, therefore, of the opinion that employees of the Merchant Marine are not entitled to the benefits of the Act of the Georgia Legislature granting to members of the armed forces of the United States of America honorary drivers licenses.
PUBLIC SAFETY-Drivers Licenses A judgment unsatisfied on the date of approval of Motor Vehicle Responsibility Act is not a basis for suspension of drivers license.
If
June 29, 1949 Honorable George W. Wilson, Director Department of Public Safety
This will acknowledge receipt of your letter of June 24, 1949 making inquiry as to your duty and authority in suspending a driver's license under the Motor Vehicle Safety Responsibility Act, Georgia Laws 1945, page 276.
You ask the following question: "Is this Department in a position to suspend a driver's license based on a judgment which is unsatisfied when such judgment was rendered prior to the passage of the Act referred to above?" It is my opinion that it was not the intention of the Legislature to make this act retroactive but that it was only to apply after the approval of the act which was March 8, 1945. Section 3 of the Motor Vehicle Safety Responsibility Act of 1945 makes it clear that it was the intention of the Legislature for this act to apply to future cases. So, it is my opinion that you would not have any authority to suspend licenses of persons for the reason that a judgment had been obtained against them growing out of an automobile wreck which occurred prior to March 8, 1945.
PUBLIC SAFETY-Drivers Licenses Temporary members of Coast Guard Reserve are entitled to Veterans Honorary Drivers Licenses.
July 8, 1949 Hon. George W. Wilson, Director Department of Public Safety
This will acknowledge receipt of your letter of July 5, 1949, addressed to Judge Parham, in which you request that I give you an official opinion as to the status of the Coast Guard Reserve regarding their rights under the Honorary Drivers' License Act of 1949.
709
My staff for several weeks has been studying this matter, and I have concluded that persons who served as temporary members of the Coast Guard Reserve are considered by the courts as being members of the armed forces of th9 United States. I am therefore of the opinion that they would be entitled to an honorary driver's license.
PUBLIC SAFETY-Drivers Licenses (Unofficial) The Commissioner may revoke license for conviction of manslaughter or for driving a motor vehicle while under influence of intoxicants or drugs.
August 5, 194!3 Hon. H. A. Wilkinson Attorney at Law
This will acknowledge receipt of your letter of August 5th, making inquiry as to the authority of the Department of Public Safety to revoke drivers' licenses.
Please allow me to refH you to the Acts of 1937, (Ga. L. 1937, p. 322), and especially Article 4, pages 341-342.
In the Acts of 1939, page 135, and especially on page 141, it is enacted by this Act that the Commissioner may in his discretion revoke the license of any operator or chauffeur upon receiving the record of such operator's or chauffeur's conviction of the following offenses:
1. Manslaughter. 2. Driving a motor vehicle while under the influence of intoxicants or drugs, etc. On page 143 of the 1939 Acts the words "suspension, revocation and cancellation" are defined. Since my official authority is restricted by law to legal matters relating to the State government, my views in this letter must be accepted as unofficial and personal.
PUBLIC SAFETY-Drivers Licenses 1. Suspension of drivers licenses is held in abeyance pending a ruling on appeal. 2. Revocation of license by the Director of Public Safety is stayed pending appeal, but pending appeal from a resulting revocation such revocation would remain in force until final determination.
October 17, 1949 Honorable George W. Wilson, Director State Department of Public Safety
I have your letter of October 7, in which you request my opinion to the following question :
"When a driver's license is suspended either for a certain period of time or indefinitely by a Court of competent jurisdiction and an official notice of such suspension is forwarded to this Department and we are subsequently notified officially that an appeal from the judgment of the Court has been filed, does this hold the suspension in abeyance, or should we hold the license and enforce the suspension pending the ruling on the appeal?"
710
Section 10 of the Act approved March 19, 1937 (Georgia Laws 1937, pp. 348, 349), in part provides as follows:
"Upon the conviction of any licensee hereunder in any court of competent jurisdiction in this State of any offense of driving a motor vehicle while intoxicated or driving a motor vehicle while engaged in a felony, or deliberately, wilfully or negligently violating any traffic law of this State, or any municipality thereof, the court trying the same is hereby given authority and jurisdiction upon such licensee being adjudged guilty to cancel or suspend the license of such defendant for such time and on such conditions as the court may deem proper, and in the event that the court should place such licensee under probation, it is hereby provided, that the court shall retain jurisdiction of said case during the period of probation with the right and power to suspend or revoke the license as to the court may deem in keeping with the public safety. It shall be the duty of the clerk of the court trying the case to immediately transmit a certified copy of the sentence and judgment to the Department of Public Safety. The clerk to receive his usual cost of such certificate."
The above quoted Section authorizes the court to impose these penalties in addition to other penalties which were already provided as a part of the sentence and judgment of the court.
Upon a motion for a new trial being filed and the court granting a supersedeas as to the execution of the sentence, it would stay the execution of all parts of that sentence, including any cancellation or suspension of the license of such defendant.
However, if the Director of the Department of Public Safety cancelled, revoked, or suspended the driver's license under Section 11 of said Act, a hearing could be demanded before an agent of the Department of Public Safety authorized by the Commissioner to hear the same. Pending this hearing, a stay of the order of revocation, cancellation, or suspension would be in effect. Upon a hearing by such agent of the Department of Public Safety, should he order a suspension, cancellation, or revocation of said license, and an appeal be filed from that decision, the suspension, cancellation or revocation would be in full force until such appeal was finally determined.
PUBLIC SAFETY-Drivers Licenses The violation of a city ordinance against "occupying seat immediately under steering wheel" while under the influence of intoxicants or drugs does not justify revocation of drivers license.
Colonel George W. Wilson, Director State Department of Public Safety
December 8, 194D
I have your letter of November 29, in which you request my opinion relative to the following question:
"Has this Department the authority to revoke or suspend drivers' licenses on request of the Atlanta Recorder's Court based on a conviction in said court for the offense of 'occupying seat immediately under steering wheel of a motor vehicle while under the influence of intoxicating liquors or drugs in the City of
Atlanta', where such offense does not specify that the licensee is actually operating the motor vehicle."
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Section 92A-9908 of the Annotated Code of Georgia provides: "Upon the conviction of any licensee hereunder in any court of competent jurisdiction in this State of any offense, of driving a motor vehicle while intoxicated, or driving a motor vehicle while engaged in a felony, or deliberately, wilfully or negligently violating any traffic law of this State, or any municipality thereof, the court trying the same is hereby given authority and jurisdiction upon such licensee being adjudged guilty to cancel or suspend the license of such defendant for such time and on such conditions as the court may deem proper, and in the event that the court should place such licensee under probation, it is hereby provided, that the court shall retain jurisdiction of said case during the period of probation with the right and power to suspend or revoke the license as to the court may deem in keeping with the public safety... " Code Section 92A-434 provides as follows: "The Director may in his discretion revoke the license of any operator or chauffeur upon receiving the record of such operator's or chauffeur's conviction of any of the following offenses: " (1) manslaughter (or negligent homicide) resulting from the operation of a motor vehicle; (2) driving a motor vehicle while under the influence of intoxicants or drugs; (3) any felony in the commission of which a motor vehicle is used; (4) failure to stop and render aid as required under the laws of this State in the event of a motor vehicle accident resulting in the death or personal injury of another, or leaving the scene of an accident as specified by the law of this State; (5) perjury or the making of a false affidavit or statement under oath to the DepartmEmt under this Chapter or under any other law relating to the ownership or operation of motor vehicles; (6) conviction, or forfeiture of bail, not vacated, upon three charges of violation of the motor vehicle laws of this State within a period of 12 months: Provided that this shall not include violations which do not affect the safety of human life or limb on the streets or highways of this State." Code Section 92A-401 provides that the Director of the Department of Public Safety shall formulate and prescribe the rules and regulations under which licenses for learners, operators and public chauffeurs shall be granted, suspended, revoked and canceled. With reference to the .authority of the Director to revoke or suspend drivers' licenses upon receiving a report from a court of the conviction for traffic offenses enumerated in Code Section 92A-434, the Director has full and complete authority to revoke or suspend drivers' licenses upon the report of a conviction for any of these enumerated offenses. And under Code Section 92A421, the Director of the Department of Public Safety has the right, with the approval of the Department, to formulate rules and regulations for issuance, cancellation, suspension and revocation of licenses. In view of the fact that a violation of the city ordinance outlined in your letter is not one of the offenses enumerated in Code Section 92A-434, and in view of the fact that no rule of the Department has been made making the violation of this ordinance a ground for revoking or suspending drivers' licenses, it is my opinion that under all the facts presented by your letter, the Department of Public Safety would have no authority to revoke or suspend the driver's license of the person who had been convicted of a violation of this city ordinance.
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PUBLIC SAFETY-Firearms (Unofficial) A license must be secured to carry a .22 caliber pistol.
November 8, 1949 Mr. Norwick R. G. Goodspeed Pullman and Comley Attorneys at Law
I am pleased to acknowledge receipt of your letter of November 4, 1949, in which you request an opinion as to the State laws of Georgia regarding the purchase of a .22 calibre pistol, and whether or not a license is required to carry the same.
As to the Georgia law regarding the possession of fire arms, I refer you to Section 2-122 of the Georgia Code Annotated, which is as follows:
"Arms, right to keep and bear.-The right of the people to keep and bear arms, shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne."
Further, Section 88-9927 of the Georgia Code Annotated provides: "Illegal purchase, sale, or use of explosives.-Any person or corporation violating any of the provisions of section 88-801 to 88-806, relating to possession, sale, or purchase, of explosives, shall on conviction be imprisoned for not more than five years and shall be fined not more than $5,000, either or both: Provided, that the person or corporation violating the provisions of this law may be punished as for a misdemeanor on the recommendation of the jury trying the case: Provided, however, that nothing provided herein shall preclude the right of citizens of the State of Georgia to own and possess small fire arms, including shotguns, and ammunition therefor. The provisions of this law shall not apply to said fire arms and ammunition." As to your second question regarding the requirement of a license to carry, certificate of good character, or other document, I refer you to Section 26-5103 of the Georgia Code Annotated, which provides: "Carrying pistols without license.-It shall be unlawful for any person to have or carry about his person or to have in his manual possession outside of his own home or place of business any pistol or revolver without first taking out a license from the ordinary of the county in which the party resides: Provided, that nothing in this law shall be construed to alter, affect, or amend any laws now in force relative to carrying of concealed weapons on or about one's person: and Provided further, that this law shall not apply to sheriffs, deputy sheriffs, marshals, or other arresting officers of this State or the United States, who are now allowed, by law, to carry revolvers; nor to any of the militia while in service or upon duty; nor to any students of military colleges or schools when they are in the discharge of their duty at such colleges." Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
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PUBLIC SAFETY-Georgia Bureau of Investigation 1. The Bureau is not clothed with general police power for purpose of making arrests. 2. The Bureau has no duty to arrest a person upon suspicion that he is in the "numbers" business. 3. It is the duty of the Bureau to assist sheriffs and city authorities in making arrests when requested to do so.
March 24, 1949 Capt. Delmar Jones Georgia Bureau of Investigation
This is to comply with your telephone request of present date in regard to your authority or the authority of the members of the Georgia Bureau of Investigation to make arrests under certain conditions.
Allow me, please sir, to quote the following Sections of the Annotated Code of Georgia of 1933, Pocket Part:
Section 92A-239. "Duties of State Patrol. It shall be the primary duty of the Uniform Division of the Department of Public Safety to patrol the rural and public roads and highways throughout this State, to prevent, detect and investigate criminal acts, and to arrest and apprehend those charged with committing criminal offenses appertaining thereto, and to safeguard the lives and property of the public. (Acts 1937, pp. 322, 337.)" Section 92A-241. "Cooperation with law officers.-They are empowered to act in cooperation with any other law enforcement agency of this State or of any city, county or other division thereof, and shall cooperate with local authorities in preventing the commission of criminal offenses, or in detecting and apprehending those charged with offenses against the criminal laws of this, or any other State, or the United States. (Acts 1937, pp. 322, 337.)" Section 92A-242. "Arrests; assistance to authorities.-They shall not exercise any power of arrest except for offenses arising for violation of the traffic laws, or laws regulating the use, ownership and control of motor vehicles, or for offenses committed upon the highways of the State: Provided, that upon request of the governing authorities of the municipality, or of the sheriff of any county or of the judge of the superior court of any county of this State, the Georgia State Patrol shall be authorized to render such assistance as such authorities may request in any other criminal case. (Acts 1937, pp. 322, 337.)" Section 92A-243. "Arrest of fugitives.-The Uniform Division of the Department of Public Safety shallnot, however, usurp any of the duties or authority of the sheriffs of this State, or of the police of any incorporated village, town or city, but they shall have the right to make arrests within the corporate limits of any village, town or city in this State where the person or persons committing, or suspected of committing a criminal offense is a fugitive or is likely to be a fugitive on account of a crime committed and the assistance of the officers of the municipality cannot be readily obtained before the escape of the fugitive. (Acts 1937, pp. 322, 337.)" While these sections apply to the Uniform Division of the Department of Public Safety, they also apply to your Department.
714
I doubt if the Uniform Division or your Department is clothed with general police power for the purpose of making arrests.
Code Section 27-211 of the Annotated Code of Georgia of 1933 which deals with the question of private persons making arrests reads as follows:
"A private person may arrest an offender, if the offense is committed in his presence or within his immediate knowledge; and if the offense is a felony, and the offender is escaping, or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion."
Section 27-212 reads as follows: "In every case of an arrest without warrant, the person arresting shall, without delay, convey the offender before the most convenient officer authorized to receive an affidavit and issue a warrant. No such imprisonment shall be legal beyond a reasonable time allowed for this purpose." I doubt seriously if it is your duty to arrest a person upon suspicion that he is in the "bug" business. Of course, when you are called upon by the Sheriff of a county or the city authorities in any municipality to assist in making arrests, I think it would be your duty to comply with their request. As the Attorney General and his Assistants are prohibited by law from rendering official opinions to persons other than the Governor and heads of the various Departments, this letter must be considered as merely my personal views on this subject.
PUBLIC SAFETY-Georgia State Patrol Any officer or trooper is entitled to a hearing before discharge, but may be suspended without hearing, a hearing to be held within 60 days after suspension.
January 26, 1949 Hon. George W. Wilson, Major-Director Department of Public Safety
In compliance with your request of January 24th, I have read and studied the Acts of 1937 creating your Department.
I find that in the Acts of 1937 under Art. 1, Sec. 5, page 328, the law dealing with the suspension and removal of the Deputy Commissioner which provides for discharge, he would be entitled to a hearing. However, under this same section, he may be suspended without a hearing, and a hearing shall be held within 60 days.
Under the Acts of 1937 creating the Public Safety Department, there is a provision under Art. 2, Sec. 5, page 332, which provides that the Commissioner may suspend any officer or trooper from duty for cause until such hearing which must be had in not less than 60 days after order of suspension, and pending such hearing, such officer or trooper shall not be allowed to wear the uniform of the Georgia State Patrol or to perform any duties thereof. I have examined the amendatory acts, and I find this same provision to be in the law. I am therefore of the opinion that uniformed patrolmen would be entitled to a hearing before final discharge.
715
REAL PROPERTY-"Squatter's" Law 1. The act contemplated by the law without color of title and without owner's consent is trespass. 2. Twenty years' actual adverse possession gives prescriptive title.
June 1, 1949 Mrs. George H. Burbage
I am pleased to acknowledge your letter of May 27th with reference to whether or not the State of Georgia has a law similar to the "squatter law," and also whether or not after a certain number of years a person can claim property by right of possession.
Regarding the "squatter law," I wish to quote to you paragraph 4 of Section 26-3001 of the Code of Georgia of 1933, which reads as follows:
"26-3001. What acts deemed trespass.-The following shall be deemed and held to be trespass and indictable, to wit:
"
"4. The squatting or settling upon the land, inclosed or uninclosed, of another, whether public or private, with no bona fide claim or color of title and without the consent of the owner: Provided, that this paragraph shall not apply to wayfarers who shall camp for a night or, in case of providential detention, for a longer time on uninclosed land, nor to an intruder who shall remove from the land after 10 days' notice."
Code Section 85-407 provides the method whereby lands acquired for a period of seven years gives title and reads as follows:
"Adverse possession for seven years gives title, when.-Adverse possession of lands, under written evidence of title, for seven years, shall give a like title by prescription; but if such written title is forged or fraudulent, and notice thereof is brought home to the claimant before or at the time of the commencement of his possession, no prescription shall be based thereon."
Code Section 85-406 gives the method whereby land held adversely for a period of twenty years gives good title and reads as follows:
"85-406. Adverse possession for 20 years gives title.-Actual adverse possession of lands for 20 years, by itself, shall give good title by prescription against everyone, except the State or persons laboring under the disabilities hereinafter specified."
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
ROADS, BRIDGES AND FERRIES-State Highway Department Since there is not included in the caption of the Act to regulate outdoox advertising any reference to discretionary power as to placing signs sought to be vested in the Highway Department, the caption is controlling and no such authority results.
January 27, 1949 Hon. Sims Garrett, Jr., Treasurer State Highway Department
Assistant Attorney General E. L. Reagan has referred to me your letter of January 13th, in which you request an opinion relating to the legality of the Highway Department entering upon a self-liquidating program providing
716
for an improved method of posting uniform highway signs along the State right-of-way.
Your question is answered by Section 2 of an Act approved August 27, 1931, (Ga. L. 1931, pp. 221-223) which provides as follows:
"Be it further enacted, that there shall be no signs of any description whatsoever erected or maintained within the right of way lines of the public roads of this State, except route markers, direction or warning signs as may be erected by or at the instance of the public road officials of this State, which officials shall include the State Highway Board of Georgia and its representatives and the various county officials having charge of all public roads not included on the State-aid system."
While it is true that Section 1 of the above Act attempts to place some discretion as to this matter in the. Highway Department, it should be noted that the caption of the Act fails to mention such permissive authority. The caption of the Act provides as follows:
"An Act to regulate outdoor advertising; to prohibit the erection of advertising structures, devices, or displays within the limits of the rights of way of the public roads in this State; to prohibit the erection or maintenance of any signs, devices, or displays on private property without the written permission of the agent, lessee, or owner; to prohibit the defacing of any signs erected by the public road authorities on the public roads or highways of this State; to provide for penalties for violation of this Act; and for other purposes."
Since the caption of the Act fails to make reference to any discretionary authority being placed in the Highway Department as to the placing of signs on the State right of way, I must come to the conclusion that the provisions of Section 1, not being covered by the caption of the Act, are without effect. Section 2 of the Act is in direct keeping with the title, and therefore is the controlling law on the subject.
I am therefore of the opinion that Section 2 of the foregoing Act prohibits the erection of signs of any description within the right of way lines of public roads of this State with the exception of route markers and warning signs erected at the instance of the public road officials.
ROADS, BRIDGES AN.D FERRIES-State Highway Depart:m.ent Where a member of the department authorized to negotiate contracts directed a subordinate to execute an extension contract with a contractor, and subsequently advised the contractor orally that money would be available for the additional work, the Highway Department is liable for the amount as determined by its officials.
Honorable Jim Gillis Director, State Highway Department
February 1, 194\J
Re: Project 1034 (2) Stephens County Extension, C. G. Tate Construction Company, Toccoa, Georgia, Claimant.
Attention: Mr. Shadburn Pursuant to your request, I am giving you the benefit of my legal views as to the liability of the State Highway Department in connection with the subject claim.
717
Upon examination of your file, I find in addition to the supporting documentary evidence a letter from Mr. John M. Wilkerson, Jr., dated August 16, 1948 to W. H. Jackson, Division Engineer, Gainesville, Georgia which I quote in part as follows:
"Confirming our telephone conversation of August 12, 1948 with Mr. Richardson of your office, this will be your authority to execute an extension agreement with C. G. Tate Construction Company on their job in Stephen:> County, extending their contract toward Avalon in an amount not to exceed $30,000.00. It is our intention to complete this contract all the way to Fairview School, or to fill in the gap in the present pavement. Please prepare the papers for the first extension agreement to cover the work already accomplished by C. G. Tate over and above his original contract and to the extent that the first $30,000.00 will reach, etc."
I find also a letter from Mr. Wilkerson to Mr. Jackson dated August 24, 1948 which I quote in part as follows:
"ReferE:nce is made to our recent correspondence regarding G. G. Tate's contract in Stephens County, the Avalon Road. We are now preparing an extension agreement to his contract covering approximately $27,500.00 worth of work which you sent us an estimate to cover a few days ago. This extension agreement will be forthcoming as quickly as the office engineer can clear it.
"In a conversation with Mr. Tate this morning I advised him that there would be approximately $20,000.00 available for additional work on this contract during September."
Based on the foregoing written commitments by Mr. Wilkerson who was Assistant Highway Engineer, State Aid, with authority to negotiate such contracts and upon the fact that the contractor acted in good faith, relying upon Mr. Wilkerson's correspondence and telephone conversations, it is my view that the Highway Department is legally liable for such amount as may be determined by your proper officials. It is my understanding that the amount is approximately $19,000.00.
ROADS, BRIDGES AND FERRIES-State Highway Department The Reciprocal Commission created in 1941 may not make agreements with other States violative of the laws of Georgia regulating the use o-f highways and the vehicles to be operated thereon.
March 18, 194:l Honorable Walter R. McDonald, Chairman Georgia Reciprocal Commission
I am pleased to acknowledge your letter of March 16th in which you request an official opinion as to whether or not the Reciprocal Commission has the authority to enter into a reciprocal agreement with another state to the extent that the size and weight laws of this State, provided for in an Act of the General Assembly of 1941, pages 449-454, are superseded and abrogated by the terms of the proposed agreement.
The authority of the Reciprocal Commission is set forth in an Act approved March 27, 1941 (Georgia Laws 1941, pp. 361-365), Section 2 of this law provides in part as follows:
"The Governor of the State of Georgia or a commission of three members to be appointed by him . . . is hereby authorized and directed to negotiate
718
and consummate, with the proper authorities of the several States of the United States, the District of Columbia, and the territories of the United States, valid and binding reciprocal agreements whereby residents of such States, the District of Columbia, and the territories of the United States, operating motor vehicles, including common and contract motor carrier vehicles, properly licensed or registered in their respective States, the District of Columbia or territories of the United States, may have the same or substantially the same privileges or exemptions in the operation of their said motor vehicles in this State, as residents of this State may have and enjoy in the operation in such other States of their motor vehicles duly licensed and registered in this State. In the making of such agreements, due regard shall be had for the advantage and convenience of the motor vehicle owners and other citizens of this State."
The question presented is whether or not the above provision of law empowers the Reciprocal Commission to enter into an agreement with another State in violation of the terms of the socalled size and weight laws approved March 27, 1941 (GEorgia Laws 1941, pp. 449-454.) The caption of this Act reads in part as follows:
"An Act governing and regulating the use of the public roads and highways of this State, according to recommendations of the Highway Transport Committee of the American Association of State Highway Officials and .the United States Bureau of Public Roads, in the interest of public safety and the protection and preservation of the public roads and highways of this State, by vehicles and parts of vehicles, . to provide penalties for the violation of the provisions of the Act . . ."
Section 1 of said Act reads in part as follows: "On and after the passage of this Act it shall be unlawful to operate upon any public road or public highway of this State any vehicle or vehicles which do not conform to uniform standard specifications which have been adopted by the American Association of Highway Officials and the United States Bureau of Public Roads as follows: ..." (The weight limitations and dimensions are hereafter set forth in detail in the statute.) I am of the opinion that the Reciprocal Commission does not have the authority to enter into any binding reciprocal agreement with another State which would violate or abrogate the terms of the above law which regulates the use of highways and the vehicles to be operated thereon. The Commission cannot supersede a valid State law which has as its purpose protecting the public safety and preservation of the public roads and highways of this State.
719
ROADS, BRIDGES AND FERRIES-State Highway Department The Highway Department may execute supplemental agreements covering increased cost of original project of not more than 20 percent, and such agreements covering extension or relocation of said project whereby neither the total length nor total contract cost shall be increased by more than 20 percent.
September 19, 194~ Honorable James L. Gillis, Sr., Director State Highway Department
I understand that you and other officials of the State Highway Department have asked the Law Department for a legal interpretation as to the rights and duties of the Highway Department under Act No. 95, Georgia Laws 1949, page 373. This Act, of course, had as its fundamental purpose the prohibition of negotiated contracts for highway construction and to provide that all contracts for construction of roads, highways, and bridges be let by public bid.
Your immediate problems seem to relate to Section 4 of that Act, which is as follows:
"That said Highway Department shall be authorized to execute supplemental agreements to said original contract covering changes andjor revised or new unit prices and items and supplementing the original contract not to exceed a 20% increase in cost of the project and to execute extension agreements affecting the length of the project which may be increased by adding sections of said project or by relocation of said project not to exceed 20% of the total length of the project or 20% of the total contract cost."
Your first question seems to be: Can the Highway Department execute supplemental agreements to an original contract covering changes and revised or new unit prices up to a 20o/o increase in the cost of the original contract and also execute an extension agreement affecting the length of the same project by adding sections or by relocation of said project not to exceed 20% of the total length of the project or 20% of the total contract cost?
I am of the opinion that the Act is so worded that you would be authorized to both change or revise unit prices or items up to 20% of the cost of the original project and also extend or relocate so long as the extension or relocations exceed neither the original length nor original cost by more than 20%.
Your next question seems to concern the authority of the Highway Department to make payments for final quantities of materials in place or for necessary additional work which exceeded by more than 20% the estimated amount of material or the estimated amount of work, provided, of course, that the increase in material and work is necessitated by unfo-reseen conditions or by inaccurate original estimates, and provided that the additional material and work are necessary to complete the project as originally planned, are entireiy within the bounds of the original project, and do not cover increased material or work occasioned by new or altered plans or specifications, or distances, or width, or type of road to be constructed; and further provided that the additional material or additional work are paid for at the same, or less, unit price set forth in the original contract.
I am of the opinion that the Highway Department would be within its authority to make such payments for such over-runs of materials or work. This, I feel sure, was the intention of the Legislature, and it is in accordance
720
with the method of operation of the Bureau of Public Roads for the construction of Federal-aid projects. I feel that it was not the intention of the Legislature to prevent completion of a project which had been advertised, bid and let in accordance with the law, wh~::n in the performance of that contract, through inaccurate estimates or unforeseen circ*mstances, it takes more work or mor~ material to complete the job than was estimated when the contract was let.
The provisos which were outlined above are of the utmost importance and should be considered in passing upon each case that arises. That is, additional material and work must be furnished at the same, or less, unit price as estimated, bid, and contracted for in the original contract. The additional work and material must be to complete the project as originally let. The additional work and material must not be occasioned by any change in the original plans or specifications such as a change in type of material, a change in the width of a road, the depth of the pavement, or the type of pavement.
In other words, the Highway Department is limited by the provisiOns of Section 4 in changing or revising unit prices or items or extending or relocating by the 20% limitation, as I have pointed out above, and it is evident that the authority to take care of unanticipated or inaccurately estimated features of the original contract is limited to that which is necessary to complete the original contract as let, when there is no necessity for increased unit prices or extensions or relocations.
SOCIAL WELFARE-County Board; State Bo,ard. 1. The power of appointment of County Welfare directors is vested in the County Health Board. 2. The function of providing for safeguards acceptable to the Federal Social Security Board against unauthorized disclosure of old-age assistance records is administrative and vested in the director of the State Board.
Honorable J. M. Forrester, Director State Department of Public Welfare
March 24, 1949
This will acknowledge receipt of your letter of January 21, 1949 in which you ask my opinion as follows:
"It is my recollection that sometime recently the Supreme Court rendered a decision that welfare directors of county welfare departments are employees of the State Welfare Department and not employees of a county."
* * *
"I will appreciate your opinion as to whether or not the Director of the Board of Social Security of the Georgia Department of Public Welfare has the authority under the law to transfer a local welfare director from one political subdivision to another." also,
"It is also my recollection that the Federal Social Security Act was amended to prohibit the disclosure of any information with respect to Old Age Assistance, as all records concerning the application, etc., of an Old Age Assistance recipient are considered privileged."
* **
"I will also appreciate your opmwn as to wheth~::r or not members of the
Board of Social Security of the State Department of Publ'c Welfare would have
721
the authority under the Federal Social Security Law to examine or have made available to them the records of the local welfare boards for examination in an official capacity."
In the case of MacNeil~, treasurer, et al. v. Wood, et al., 198 Ga. 150, 155, the Supreme Court of Georgia held:
"There are certain features connected with the employment of the employees of Fulton County welfare department that indicate that they are employees of the county. The county. board is selected by the county commissioners, and all other employees of the department are selected by the county board. The county appropriates money with which to pay the salaries, and the county department administers all county pauper relief. But, on the other hand, standards for qualification and salaries of the employees of the county department are fixed by the State department, and the county director is employed with the consent of the State department. The State department reimburses the county for 95 percent. of the funds appropriated by it for the payment of expenses and grants. Thus, it might be said that the employees of the county d,epartmen,t are neither county nor State employees, but are em,ployees of both the St,ate and the county departments.'' (Emphasis supplied).
Section 99-504 of the 1933 Annotated Code of Georgia, Pocket Supplement, provides:
"County director of public welfare; appointment, qualifications, tenure, salary, and bond.-It shall be the duty of the county board of public welfare to appoint a county director of public welfare, who shall mE:et the qualifications prescribed by the State Department. The tenure of the county director shall be at the pleasure of the county board and the salary of the county director shall be fixed by the county board in accordance with the salary schedule prescril;>ed by the State Department. The county director, shall give bond for the faithful performance of his duties and the faithful accounting of all moneys coming into his hands as such director, in such a manner and under such terms and conditions as may be prescribed by the State Department."
It is my opinion that the Director of the Board of Social Security of the State Department of Public Welfare does not have the authority to transfer a county welfare director from one county to another county in the State, since the power of appointment of the county welfare director is vested by law in the county welfare board.
Paragraph (a) (8) of Section 302 of Title 42 of the United States Code Annotated provides:
"effective July 1, 1941, provide safeguards which restrict the use or disclosure of information concerning applicants and recipients to purposes directly connected with the administration of old-age assistance."
Paragraph 2 of Section 304 of Title 42 of the United States Code Annotated provides:
"that in the administration of the plan there is a failure to comply substantially with any provision required by section 302 (a) of this title to be included in the plan;
"the Board shall notify such state agency that further payments will not be made to the State until the Board is satisfied that such prohibited requirement is no longer so imposed, and that there is no longer any such failure to comply. Until it is so satisfied it shall make no further certification to the Secretary of the Treasury with respect to such State.''
722
Under the above statutes, the State plan of the State Department of Public Welfare for the administration of old-age assistance must contain safeguards acceptable to the Federal Social Security Board which restrict the use or disclosure of information concerning applicants and recipients of old-age assistance to purposes directly connected with the administration of old-age assistance.
The formulation of such a plan is an administrative function of the State Department of Public Welfare and sueh plan must be acceptable to the Federal Social Security Board in order for the State to receive a grant of old-age assistance.
Section 99-406 of the 1933 Annotated Code of Georgia, Pocket Supplement, in defining the duties of the State Board of Social Security provides in part:
"It shall be the duty of the State Board to serve as an advisory and policy forming Board advising with the Director regarding the adoption of all policies, rules, and regulations for the State Department. . . ."
It is my opinion that it was the intent of the General Assembly in the enactment of the above statute to make the State Board of Social Security an advisory and policy forming Board and not an administrative Board. The indi- vidual members would not have any other authority than that vested in the Board as a whole and I cannot reach the conclusion that individual members of the State Board of Social Security would be authorized to carry on administrative duties in regard to county welfare boards when their duties are clearly defined by law as those who are to serve in an advisory and policy forming capacity, the executive and administrative functions being vested in the Director of the State Board of Social Security of the State Department of Public Welfare under Section 99-408 of the 1933 Annotated Code of Georgia.
Section 99-408 of the 1933 Annotated Code of Georgia, Pocket Supplement, in defining the duties of the Director of the State Board of Social Security of the State Department of Public Welfare provides in part:
"The Director shall serve as the executive and administrative officer of the State Department. . . ."
It is my opinion that it is an administrative function of the State Department of Public Welfare to formulate and adopt such safeguards as are acceptab}e.to. the Federal Social Security Board to restrict the use or disclosure of information concerning applicants and recipients of old-age assistance to purposes connected with the administration of the public assistance programs.
It is my further opinion that the State Department of Public Welfare has the authority to supervise and inspect the records of any county welfare department in the proper administration of the welfare plans delegated to the State Department by law; provided, that safeguards are properly promulgated to restrict the use or disclosure of information concerning applicants and recipients of old-age assistance to purposes directly connectl::d with the administration of the public assistance programs.
723
SOCIAL WELFARE-County Board (Unofficial) Members of Legislature may not serve as members of County Board.
December 15, 1949 E. G. Daniel. Clerk Commissioners of Road and Revenues Jenkins County
I am pleased to acknowledge your letter of December 12, 1949 requesting that I advise you if a State Representative may legally serve as a member of a County Welfare Board.
Under the law I can only give opinions to the Governor and the heads of the various State Departments on matters in which the State is involved. However, I am pleased to cite you the statute governing the question propounded by you.
Section 99-503 of the 1933 Annotated Code of Georgia, Pocket Supplement, provides in part:
"The County board of public welfare shall consist of five members appointed by the county commissioners, or the constituted fiscal or financial agent of each respective county with the approval of the State Department: Provided that no elected officer of the State or any subdivision shall ~ eligible for such appointment. ...." (Emphasis supplied.)
Members of the General Assembly are elected officers and would come within the proviso of the above Code Section.
Since my official authority is restricted by law to legal matters relating to the State Government, my views in this letter must be accepted as unofficial and personal.
SOCIAL WELFARE-Factory for the Blind 1. The Factory for the Blind is within the provisions of the Workmen':;, Compensation Act. 2. It is excluded from the provisions of the FLSA. 3. If the Factory sells to other than State Departments it is subject to regulatory measures, such as the Robinson-Patman Act.
June 14, 1949 Honorable Alan Kemper, Director State Department of Public Welfare
I am pleased to acknowledge Honorable J. M. Forrester's letter of May 26, 1949 in which he requests my opinion as follows :
"This Department has set up and plans to begin operations immediately at the Factory for the Blind, as provided for in an Act of the General Assembly approved March 30, 1937 and as amended by an Act approved February 14, 1949, and the question has arisen: Are the operations of this State Institution when engaged in interstate business activities subject to regulatory measures by which the Federal Government controls and regulates business activities such as the Fair Labor Standards Act and the Robinson-Patman Act. Also, will you please advise in what particulars this Institution is subject to provisions of the Georgia Workmen's Compensation Act."
The request involves three specific questions which divide themselves as follows:
724
1. Is the Factory for the Blind subject to the provisions of the Georgia
Workmen's Compensation Act?
2. Are the operations of the Factory for the Blind, when engaged in inter-
state business activities, subject to regulatory measures by which the Federal
Government controls and regulates business activities, such as the Fair Labor
Standards Act?
3. Are the operations of the Factory for the Blind, when engaged in inter-
state business. activities, subject to regulatory measures by which the Federal
Government controls and regulates business activities, such as the Robinson-
Patman Act?
Section 5 of the 1949 Act (Ga. Laws 1949 pp. 544, 545) amending the origi-
nal Act of 1937 (Ga. Laws 1937 pp. 579, 583) which created and established a
Factory for Blind Persons, provides in part:
"Said Factory is a State institution under the direction and supervision
of the Department of Public Welfare...."
Section 114-101 of the 1933 Annotated Code of Georgia, Pocket Supplement,
which is a part of Chapter 114-1 of said Code, relating to the construction and
operation of the Workmen's Compensation Act, provides in part:
"'Employer' shall include the State of Georgia and all departments there-
of, &
"
Under the clear proVisions of Section 114-101 there can be no doubt that de-
partments of the State Government are subject to the provisions of the Work-
men's Compensation Act of Georgia when such departments or institutions
under them come within the provisions of an "employer", as provided in the
Workmen's Compensation Act. Likewise, all employees of such departments
are entitled to the benefits of the Workmen's Compensation Act when such em-
ployees come within the definition of an "employee" as provided in said Act.
It is clear that Section 5 of the 1949 Act, above cited, makes the Factory
for the Blind a part of the State Department of Public Welfare, a department of
the State of Georgia, and subject to the provisions of the Workmen's Compen-
sation Act.
While you do not so state in question two, I presume you have reference
to the Fair Labor Standards Act of 1938, 29 U. S. C. A. Section 201-219, and
will assume this for the purpose of this opinion.
Section 203 of Title 29 U. S. C. A. in reference to definitions providE's
in part:
"As used in sections 201-219 of this title . . . (d) 'Employer' includes any person acting directly or indirectly in the interest of an employer in relation to an employee but shall not include the United States or any State or political subdivision of a State. ..." (Emphasis supplied)
In construing the above, the Fifth Circuit Court of Appeals in the case of Creekmore v. Public Belt Railroad Commission, 134 Fed. 2d. 576, held:
"The exclusion provision of Section 3 (d) of the Fair Labor Standards Act is couched in plain and unambiguous language and should be given effect as it is written. Appellant strongly contends, however, that because of the remedial nature of the Act it was the legislative intent to include within its coverage employees such as those working for the Public Belt Railroad Commission for the City of New Orleans; that in operating the railroad the City of New Orleans acts in a purely proprietary capacity; and that employees of the railroad should be within the coverage of the Act.
725
"In construing the Act the duty of the Court is to determine what employers and employees are within its coverage, not what employees 'should' have been covered, for the question of who 'should' be covered is a matter solely within the providence of the legislative branch of the government. The language of Section 3 (d) being plain, its meaning clear, the result reasonable, we see no reason for resorting to extraneous considerations in an effort to construe and give to such language another and different meaning. Cf. Helvering v. New York Trust Co., 292 U. S. 455, 54 S. Ct. 806', 78 L. Ed. 1361; United States v. Mo. Pac. R. Co., 278 U. S. 269, 49 S. Ct. 133, 73 L. Ed. 322."
I am of the opinion that the Factory for Blind Persons, designated by and made a State institution under the State Department of Public Welfare by the General Assembly of Georgia (Ga. Laws 1949 p. 545 Sec. 5) is excluded from the provisions of the Fair Labor Standards Act of 1938, 29 U. S. C. A. Sections 201219.
In regard to question three, I assume that you have reference to Section 13 of Title 15 U. S. C. A. which provides:
"(a) It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly received the benefit of such discrimination, or with customers of either of them: Provided, That nothing contained in Sections 12, 13, 14-21, 22-27 of this title shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered: Provided, however, That the Federal Trade Commission may, after due inver'igation lilnd hearing to all interested parties, fix and establish quantity limits, and revise the same as it finds necessary, as to particular commodities or classes of commodities, where it finds that available purchasers in greater quantities are so few as to render differentials on account thereof, unjustly discriminatory or promotive of monopoly in any line of commerce; and the foregoing shall then not be construed to permit differentials based on differences in quantities greater than those so fixed and established: And provided further, That nothing contained in sections 12, 13, 14-21, 22-27 of this title shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade: And provided further, That nothing contained in sections 12, 13, 14-21, 22-27 of this title shall prevent price changes from time to time where in response to changing conditions affecting the market or the marketability of the goods concerned, such as but not limited to actual or imminent deterioration of perishable goods, obsolescence of seasonal goods, distress sales under court process, or sales in good faith in discontinuance of business in the goods concerned.
"(b) Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities fur-
726
nished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination: Provided, however, That nothing contained in sections 12, 13, 14-21, 22-27 of this title shall prevent a seller rebutting the prima-facie case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers was made in good faith to meet an equally low price of a competitor, or the services or facilities furnished by a competitor.
"(c) It shall be unlawful for any person engaged in commerce, in the course of such commerce, to pay or grant, or to receive or accept, anything of value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof, except for services rendered in connection with the sale or purchase of goods, wares, or merchandise, either to the other party to such transaction or to an agent, representative, or other intermediary therein where such intermediary is acting in fact for or in behalf, or is subject to the direct or indirect control, of any party to such transaction other than the person by whom such compensation is so granted or paid.
" (d) It shall be unlawful for any person engaged in commerce to pay or contract for the payment of anything of value to or for the benefit of a customer of such person in the course of such comm.erce as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering for sale of any products or commodities manufactured, sold or offered for sale by such person, unless such payment or consideration is available on proportionally equal terms to all other customers competing in the distribution of such products or commodities.
"(e) It shall be unlawful for any person to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale, with or without processing, by contracting to furnish or furnishing, or by contributing to the furnishing of, any services or facilities connected with th& processing, handling, sale or offering for sale of such commodity so purchased upon terms not accorded to all purchasers on proportionally equal terms.
"(f) It shall be unlawful for any person engaged in commerce, in the course of such commerce, knowingly to induce or receive a discrimination in price which is prohibited by this section. Oct. 15, 1914, c. 323, 2, 38 Stat. 730; June 19, 1936, c. 592, 1, 49 Stat. 1526."
In the case of Lowenstein vs. Evans, et al, 69 Fed. Rep. 908, the Fourth Circuit Court of Appeals held:
"The act of July 2, 1890 (26 Stat. 209, c. 647), to protect trade and commerce against unlawful restraints and monopolies, is not applicable to the case of a state which, by its laws, assumes an entire monopoly of the traffic in intoxicating liquors.... A state is neither a 'person' nor a 'corporation' within the meaning of the act of congress.
"Where a person brings an action under section 7 of the anti-trust law of July 2, 1890, against the officials of a state, to recover damages for acts done under authority of a state statute, which gives the state an entire monopoly of the traffic in intoxicating liquors, the state itself is a necessary party thereto, and consequently the federal courts would have no jurisdiction of the action."
727
In the case of State of Georgia vs. Evans, 62 S. Ct. 972; 86 L. Ed. 1346, the Supreme Court of the United States held:
"The state of Georgia was a 'person' within sections 1-7 of this title, and could maintain action for treble damages for injuries sustained as result of alleged combination to fix prices and suppress competition in sale of asphalt which the state purchased for use in constructing public highways."
The Supreme Court further held in this case:
"The sovereignty of the state no longer exists with reference to the United States anti-trust Acts because they apply only to interstate commerce. U. S. Const. Art. 1 Sec. 8; Addyston Pipe & Steel Co. v. United States; 175 US 211, 44 L. ed. 136, 20 S. Ct. 96; Northern Securities Co. v. United States, 193 US 197, 48 L. ed. 679, 24 S. Ct. 436, Southern R. Co. v. King, 217 US 524, 54 L.ed. 868, 30 S. Ct, 594; West v. Kanns Natural Gas Co., 221 US 229, 55 L. ed. 716, 31 S. Ct. 564, 35 LRA (NS) 1193; United States v. lnternaitional Harvester Co. (DC) 214 F 987; United States v. Reading Co. (DC) 226 F.i 229; Philadelphia, B. & W. R. Co. v. Shubert, 224 US 603, 56 L. ed. 911, 32 S. Ct. 589, 11 NCCA 892; United States v. Hill, 248 US 420, 63 L. ed. 337 39 S. Ct. 143; Truax v. Corrigan, 257 US 312, 6'6 L. ed. 254, 42 S. Ct. 124, 27 ALR 375.
"A state may specifically divest itself of its sovereignty by its own legislation under which it assumes to act in a proprietary capacity. Bank of United States v.Planters' Bank, 9 Wheat. (US) 904, 6 L. ed. 244; Davis v. Gray, 16 Wall (US) 203, 21 L. ed. 447; Murray v. Charleston, 96 US 432, 24. L. ed. 760; Hall v. Wisconsin, 103 US 5, 26 L. ed. 302; Ga. Code 1933, Sees..91-405; Alexander v. State, 56 Ga. 479.
"When a state has divested itself of its sovereignty it must bear the burc dens of individuals and is entitled to their remedies. Pennsylvania ex rei. Schnader v. Fix (DC) 9 F. Supp. 272; Ohio v. Helve-ring, 292 U. S. 360, 78.L. ed. 1307, 54 S. Ct. 725; South Carolina v. United States, 199 US 437, 50 L. ed. 261, 26 S. Ct. 110, 4 Ann Gas 737; United Sta.tes v. California, 297 US '.175; 80 h c::d... 567, 56 ,S. Ct. .421; Allen v. University System, 304 US 439, 82! L. ed. 1448, 58 S. Ct. 980; Helvering v. P-owers, 293 US 214, 79 L ..ed...291, 55 S. Ct. 171; Honduras v. Soto, 112 NY 310, 19 NE 845, 2 LRA 642, 8 Am St Rep 744."
If the Factory for the Blind confined its activities to the manufacture and sale of supplies to the departments of the State, its sub-divisions, and institutions, I am inclined to the view that it would not be subject to the provision~ of Sectipn 13 of Title 15 U.S.C.A. However, if the Factory for the Blind manufactures and sells products to the Federal Government, other States, and to individual and corporate dealers in said supplies, it would be my opinion that they would be engaging in interstate commerce in competition with private enterprise and would fall within the provisions of the above cited act for the reason that if the word "person" is to include a State as plaintiff, it must equally include a State as defendant, and for the further reason that the State divested itself of the sovereignty by its own legislation under which it assumes to act in a proprietary capacity. In other words, when the General Assembly enacted Section 6 of the 1937 Act authorizing the Factory for the Blind to manufacture and sell products beyond the borders of the State to other States, and to individual and corporate dealers in such supplies, it then left the field of governmental activities and entered the field of private enterprise through interstate transactions.
728
SOCIAL WELFARE-State Department The State Department is not required to assist in return of minor child to Georgia for general relief purposes.
Honorable J. M. Forrester, Director State Department of Public Welfare
March 23, 1949
I am pleased to acknowledge receipt of your letter of March 11, 1949 requesting my opinion as to where legal responsibility rests for providing financially and otherwise for the subject mentioned therein.
In your letter you state that: " . . . The Aunt still cannot control her; and the Ohio Department of Public Welfare is pressing for her return to Georgia. The situation now is: "The State has no funds for this purpose; Rockdale County; Georgia, refuses 'to provide another penny.' "There are no people known to be sufficiently interested to pay the cost of the child's return to Georgia: "If the child is returned to Conyers, Georgia, there is no known place where she can be given a home, there or elsewhere. "If returned, and placed in the State Hospital at Milledgeville, (the only place available, since there is no Institution for feeble-minded colored children in Georgia) the child will, upon examination by the doctors at the Hospital, be declared feeble-minded but not psychotic. The solution of the problem will then be as far distant as it was in the beginning.'' Therefore, I assume that you have exhausted all administrative resources at your command without finding a solution to the problem. I know of no law which requires or allows the State Department of Public Welfare to provide general relief in the form of financial assistance or otherwise to return a person in this State from another state for general welfare relief purposes. It would appear that the question propounded by you is one which addressed itself to the discretion of the General Assembly.
SOCIAL WELFARE-State Depart.ment The only remedy available to State Department in event of a county's failing to make contributions for benefits is to withhold grants-in-aid until such contributions have been made.
Honorable J. M. Forrester, Director State Department of Public Welfare
March 30, 1949
I am pleased to acknowledge your letter of March 21, 1949, in which you requested my opinion, as follows:
"Under the Public Welfare Act in Code Section 99-622 of the Code of Georgia Annotated, the various counties of the State are required to contribute not more than 5% of the total cost of the administration and the total cost of all the benefits payable under the Old Age Assistance, Aid to Dependent Children and Aid to the Blind programs.
"Should a particular county fail to contribute, as set forth in Code Section
729
99-622, what remedy, if any, does the State Department of Public Welfare have to require that such contribution be made?
"Assuming that a county has made a levy for a particular calendar year, and the taxes derived from such levy has become exhausted, what remedy, if any, does the State Department of Public Welfare have to require said county to continue making such contributions, as required by law, for the remainder of the particular year?"
Section 99-622 of the 1933 Annotated Code of Georgia, pocket supplement, provides:
"The various counties of the State shall contribute not more than five per cent. of the total cost of administration and the total cost of all benefits payable under this Chapter; the remaining 95 per cent. of such administrative expenses and grants shall be payable by the State Department of Public Welfare and the Social Security Board. The Governor is hereby authorized by appropriate executive order to enforce this section."
Both of your questions resolve themselves into the query as to what remedy, if any, the State Department of Public Welfare may have to require a county to make the contributions enumerated in the above Code Section.
It is my opinion that the only remedy that is available to the State Department of Public Welfare under the present law in the event that a county should fail to contribute as provided in Section 99-622, is that procedure provided in Section 99-430 of the Georgia Code.
Section 99-430 of the 1933 Annotated Code of Georgia, pocket supplement, provides in part:
"In administering any funds appropriated or made available to the State Department for welfare purposes, the State Department shall have the power:
"(1) To require as a condition for receiving grants-in-aid that the county shall bear the proportion of the total expense of furnishing aid, as is fixed by the law relating to such assistance; ..."
The State Department of Public Welfare is vested under the provisions of the above Section with the power and authority to require a county to bear its proportion of the total expense of furnishing aid, as is fixed by the law relating to Old Age Assistance, Assistance to the Needy Blind Persons, and Assistance to Dependent Children, programs, as a condition to the county receiving grantsin-aid.
Through administrative means and methods, the State Department of Public Welfare may, in its reasonable discretion withhold grants-in-aid to a county until the conditions enumerated under Code Section 99-622 have been made by a county.
I know of no other power vested by law in the State Department of Public Welfare to require a county to make the necessary legal arrangements to make the contributions provided under Code Section 99-622.
730
SOCIAL WELFARE-State Department The Department is charged with offering special services to handicapped children only to the extent they are unable to avail themselves of facilities offered by State educational systems.
March 31, 1949
Honorable J. M. Forrester, Director
State Department of Public Welfare
I have your letter of March 28, in which you ask for an opinion as to the
responsibility of the State Department of Public Welfare in regard to the edu-
cation of handicapped children in Georgia.
You say that certain agencies in the State feel that your Department has
the total responsibility for offering basic and special education for children
with any type of handicapping condition and that this belief is apparently
based on the new Cerebral Palsy Act No. 68 of the 1949 General Assembly.
As you know, under the Welfare Reorganization Act of 1937, by Georgia
Code Annotated Supplement, Section 99-427, the State Department of Public
Welfare is designated as the agency of the State of Georgia to supervise the
administration of a program of services for children who are crippled or who
are suffering from conditions which lead to crippling, and that the purpose of
such program shall be, among other things, to provide for medical, surgical, cor-
rective and other services and care.
By Section 99-428, the State Department is authorized to formulate and ad-
minister detailed plans for the purposes specified in Section 99-427 and to dele-
gate the authority provided for herein as authorized in Section 99-424. Section
99-424 provides that the State Department shall be empowered with authority
to delegate in whole or in part the operation of any institution or other activity
of this Department to any other appropriate department or agency of the State,
County, or municipal governments, and to contract with and cooperate with
such departments or subdivisions in any manner proper for carrying out the
purposes of the Welfare Reorganization Act of 1937.
The caption and Section 2 of the new Cerebral Palsy Act provides that it
shall be the duty of the State Department of Public Welfare as a part of its
institution, welfare and crippled children services and duties to formulate and
put into effect plans and programs and facilities for the care and treatment of
children residing in Georgia suffering from cerebral palsy and all other handi-
capping conditions. The Department is given the authority to make such rules
and regulations as may be deemed necessary or desirable for the administration
of such plans and programs as provided for in this Act.
Paragraph 8 of Section 3 of the Act authorized the State Department of
Public Welfare to provide for the special education of children suffering from
cerebral palsy, to include private instruction and hospitals and homes and clinics,
and to include the establishment of special classes with special teachers in the
existing public school systems of the State.
Paragraph 10 of Section 3 of the Act authorizes the State Department
to cooperate with other existing agencies and bodies, both public and private,
for the purpose of carrying out the intent of this Act.
Section 6 provides that the Cerebral Palsy Act, being necessary for the
welfare of the State and its inhabitants, shall be liberally construed to effect
the purpose thereof.
Section 7 provides that the Sections of this Act shall be deemed to provide
731
an additional and alternative method for the doing of the things authorized thereby and shall be regarded as supplemental and additional to powers conferred by other laws, and shall not be regarded as in derogation of any powers now existing.
From the foregoing provisions of the Cerebral Palsy Act which I have cited to you, I think it is clearly apparent that the program initiated by this Act is to fall generally under your Department's programs and duties in regard to crippled children. I have pointed out to you in paragraphs three and four of this letter that your Department, as the designated agency of the State to supervise a program of services for crippled children, is authorized to delegate your authority in whole or in part to any other appropriate department or agency of the State, County, or municipal governments, and to contract with and cooperate with such departments or subdivisions in any manner proper for carrying out the purposes of your Department's duties.
The Cerebral Palsy Act itself charges your Department with the duty of cooperating with existing agencies and bodies, both public and private, for the purpose of carrying out the intent of the Cerebral Palsy Act. And it provides that the Act shall be liberally construed to effect its purposes, and finally, it sets out that the Cerebral Palsy Act is to provide an additional and alternative method for the doing of the things authorized in it, and shall be regarded as supplemental and additional to powers conferred by other laws, and shall not be regarded as in derogation of the powers now existing.
As for the pertinent provisions of the Cerebral Palsy Act in regard to education, it sets out that your Department is to provide for the special education of children suffering from cerebral palsy, to include private instruction and hospitals and homes and clinics, and to include the establishment of special classes with special teachers in existing public school systems of the State.
In view of the foregoing provisions of law which I have cited to you, it is my opinion that the law provides both by intent and word that your Department does not have the total responsibility for offering basic and special education to children with any type of handicapping condition; that your Department is only authorized to provide for special education when funds are appropriated therefor, and that such special education and special classes and teachers, when possible, are to be in the existing public school systems of the State.
As we well know, the State school system of Georgia, together with all its component parts, is generally charged with the duties of offering educational opportunities for all of the children of school age in this State and to equalize them so far as possible.
In conclusion, therefore, it is my opinion that it is the duty of the State educational systems to offer their facilities to all children, including those suffering from handicapping conditions, and that then, as and only to the extent that the handicapped children are unable to accept the opportunities offered them, your Department is charged with offering special instruction classes and teachers in cooperation with the existing school systems of the State.
732
SOCIAL WELFARE-State Department The State Department of Public Welfare is not only authorized, but is under a duty, to purchase care in foster family homes for enumerated classes of children on a 100 o/o basis from available Federal funds.
May 13, 1949 Honorable J. M. Forrester, Director State Department of Public Welfare
I am pleased to acknowledge your letter of May 9, 1949 wherein among other things you state,
"The Federal Social Security Act enacted August 14, 1935 provides under Title 5, Part 3, Section 521 (a) for grants to States for child welfare services, and the Federal Social Security Administration, effective for the fiscal year beginning July 1, 1949, has authorized the use of a portion of the grant to the State of Georgia for purchasing care for children in foster family homes on a 100o/o basis from Federal funds. All grants to States are contingent upon expenditures being permissible under State laws." and request my opinion on the problem set forth therein which resolved itself into the following question:
"Does the State Department of Public Welfare have the authority to accept and disburse a Federal grant for purchasing care for children in foster family homes on a 100o/o basis from Federal funds?"
The provision of Article VII, Section II, Paragraph I, of the 1945 Constitution of Georgia (Georgia Code Section 2-5501) has no application to the question under consideration since the provisions therein have reference to the limitation of powers of the General Assembly to levy taxes.
The acceptance and disbursem*nt of a grant from the United States Government where 100o/o of such grant is from Federal funds could not involve State funds since the total grant is from sources other than State funds.
Section 99-411 of the 1933 Annotated Code, Pocket Supplement, provides:
"The State Department shall administer or supervise all child welfare activities, including those services as provided for in Public Number 271, Title 5, (Part 3), as enacted by the 74th Congress of the United States in House Resolution 7260, the importation of children; licensing and supervising of private and local public child caring agencies and institutions; the care of dependent, neglected, and delinquent children in foster family homes, or in institutions, the protection of children for adoption or those of illegitimate birth; the operation of State institutions for children and cooperation in the supervision of juvenile probation."
Section 99-412 of the 1933 Annotated Code, Pocket Supplement, provides:
"The State Department shall cooperate with the Federal Government, its agencies or instrumentalities, in establishing, extending and strengthening services for the protection and care of homeless, dependent, and neglected children and children in danger of becoming delinquent, and to receive and expend all funds made available to the Department by the Federal Government or State, or its political subdivisions, for such purposes."
The above sections place a duty upon the State Department of Public W ~olfare to cooperate with the Federal Government in establishing, extending and strengthening services for the protection and care of homeless, dependent, and neglected children and children in danger of becoming delinquent, and to
733
receive and expend all funds made available to the Department by the Federal Government or State, or its political subdivisions, for such purposes.
Section 58 of the General Appropriations Act of 1943, Ga. L. 1943, p. 95, provides:
"All F:deral Funds received by the St,ate of Georgia are hereby continually appropriated in the exact amounts and for the purposes authorized and directed by the Federal Government in making the grant."
This item of the General Appropriation Bill is made permanent and continuing by Article VII, Section IX, Paragraph II, of the 1945 Constitution of Georgia which provides as follows:
"Each General Appropriation Act, with such amendm:nts as are adopted from time to time, shall continue in force and effect for each fiscal year thereafter until repealed or another General Appropriation Act is adopted; provided, however, that each section of the General Appropriation Act in force and effect on the date of the adoption of this Constitution, of gene,ral application and pertaining to the administration, limitation and restriction on the pay.m.ent of appropriations and each section providing for appro.priation of Federal Grant& a.nd other continuing appropriations and adjustments on appropriations shall remain in force and effect until specifically and separately repealed by the General Assembly." (Emphasis supplied.)
It is my opinion that the purchase of car: in foster family homes for such children as are enumerated in Code Section 99-412 on a 100% basis from Federal funds'" comes within the authority granted to the State Department of Public Welfare under the above statutory and constitutional provisions and that not only is the Department authorized but it is the Department's duty to do so when funds have been made available for such purposes by the Federal Government.
STATE PORTS AUTHORITY-Contracts. The Authority may sell to the Department of Agriculture any portion of the Medical Depot site conveyed pursuant to Act of 1949 which is not required by it, the proceeds to be used for purposes of the authority.
Honorable Tom Linder Commissioner of Agriculture
October 5, 1949
This will acknowl:dge your letter of September 30, 1949, in which you request my opinion as follows:
"The Department of Agriculture is desirous of establishing a farmers' market at Savannah, Georgia, on property now owned by the State Ports Authority.
"In establishing this market, it would be necessary to construct buildings
and other needed facilities with State money. For the mutual protection of the State Ports Authority and the D:partment of Agriculture, could this land be
leased for a period of say twenty-five years and with an option for renewal
of twenty-five additional years, or a transfer of the market site property out-
right to the Department of Agriculture from the State Ports Authority?
"Please let me havE, at your early convenience, a ruling as to whethe1: either or both of the above would be legal."
734
Section IV of Senate Bill No. 55, Georgia Laws 1949, page 778, provides in part:
"Be it further enacted by thb authority aforesaid that the Governor of the State of Georgia is hereby authorized to convey for and in behalf of the State title to lands and improvements known as the Medical Depot site in Chatham County, Georgia adjacent to the Savannah River. For a more particular description, referbnce is made to the deed conveying the same to the State of Georgia, to the Georgia Ports Authority upon payment of such nominal sum to the State Treasurer as may be agreed upon by the Governor and the Authority. The Authority shall have the power to sell any portions of land and or improvements thus conveyed as arb not required for port or warehouse operation or for the future expansion and or improvement of the operation of a system of State docks provided that any moneys received incident to such sales shall be utilized by the Authority for the further expansion, construction and improvement of the bXisting facilities located at the Medical Depot site in Chatham County on the Savannah River...."
On March 29, 1949, Honorable Herman E. Talmadge, Governor of the State of Georgia, pursuant to the above cited Act, conveyed to the Georgia Ports Authority the property in question by deed, the pertinent provisions being as follows:
"NOW, THEREFORE, In consideration of the sum of Onb Thousand ($1000.00) Dollars and for other valuable considerations paid to the Treasurer of the State of Georgia, as provided and in accordance with said Act No. 174, I, HERMAN TALMADGE, GOVERNOR OF THE STATE OF GEORGIA, and for and in behalf of the STATE OF GEORGIA, have bargained, sold and conveyed, and do by these presents bargain, sell, convey, remise, release, and forever quitclaim unto the GEORGIA PORTS AUTHORITY, its succbssors and assigns, all the right, title, interest, claim or demand which the State of Georgia has or may have had in or to the following described property, situate, lying and being in the County of Chatham, State of Georgia, to wit:
*' * * * *
"TO HAVE AND TO HOLD the said described premises unto the GEORGIA PORTS AUTHORITY, its successors and assigns, so that neither the STATE QF GEORGIA nor its assigns, nor any person or persons claiming under it shall at any time claim or demand any right, title, or interest to the described premises or its appurtenances."
It is my opinion that the State Ports Authority has the power to sell or lease any portions of land thus conveyed as are not required for port or warehouse operation or for the future expansion andjor improvement of the operation of a system of State docks.
735
WORKMEN'S COMPENSATION-Counties The establishment of Workmen's Compensation provided by collection of taxes by counties is permitted, but a county is not liable to suit unless made so by statute.
August 8, 1949 Honorable Felix C. Williams Attorney at Law
Urgent State matters have made it compulsory that there be some delay in reaching matters of an unofficial or personal nature, and I am sorry that I was unable to reply to your letter regarding the payment of Workmen's Compensation by the County of Emanuel in time for the Commissioners meeting on August 3rd.
I call your attention to the enabling Act approved January 30, 1946 (Ga. Laws 1946, pages 87-89), passed pursuant to the Constitution of 1945, Section 2-5701, setting out the purposes for which taxes may be levied and collected by counties, paragraph 15 of which rE:ads as follows:
"15. To provide for workmen's compensation and retirement or pension funds for officers and employees."
Section 2-8003 of the Constitution of Georgia of 1945 provides: " . . . All laws now of force in this State, not inconsistent with this Constitution shall remain of force until thE: same are modified or repealed by the General Assembly." Further, I want to call your attention to Section 23-1502 of the Code of Georgia of 1933 Annotated, which provides: "A county is not liable to suit for any cause of action unless made by Statute." The court held in the case of: Ayers vs. Franklin County, 73 Appeals 207 (3) , as follows: "There is no statutory or constitutional provision in this State authorizing the maintenance against a county of a tort action for damages for personal injuries sustained by an employee of the county while repairing a public road of the county, which injuries are alleged to have been caused by the negligence of the county in furnishing to the employee old, worn, and defective machinery which was to be used and which was being used by him in repairing the road at the time he recE:ived the injuries."
j j j j j j j j j j j j j j j
PART IV List of Appellate Court Cases
738
TABLE OF CASES
Handled by Department of Law in Appellate Courts, January 1, 1948 through Dec. 31, 1949
Balkcom, (Warden) v. Gunn -------------------------------------------------------- __ _ 206' Ga. 167 Beetles v. State ------------------------------------------------------------------- _________ _ 203 Ga. 627 Bonner v. State ---------------------------------------------------------------------------------- 206 Ga. 19 Brown v. State ------------------------- ------------------------------------------------------ 203 Ga. 218 Brown v. State ------------------------------ ------------------------- ______________________ _ 205 Ga. 766 Bryan v. State _____ -------------------------------- ------------------------------------------ 206 Ga. 73
Campbell v. State -------------------------------------- 204 Ga. 399
Capitol Distributing Co. v. Redwine, Revenue Commissioner _______ _ 206 Ga. 477
Carter v. State ------------------------------------------------------------------------------ 204 Ga. 242
Carroll v. State
------------------
204 Ga. 510
Chubbs v. State --------
_________________ ------------------------------------------- 204 Ga. 762
Climer v. State --------------------
204 Ga. 776
Crider v. Balkcom, (Warden)
204 Ga. 480
Davis v. State
204 Ga. 78
Davis v. State ------- ------ --------------------------------- ____________________ _ 205 Ga. 248
Davis v. State ------------------------- __ --------------------------------------------------- 205 Ga. 719
Davis v. State _____ ---------------
------------------------------------------ 204 Ga. 467
Dean v. State ---------------------------------------------------------------------------------- 204 Ga. 759
Dorsey v. State ____ _
204 Ga. 345
Duke v. State _______ -----------------
205 Ga. 106
Edwards v. State Edwards v. State
Elvine v. State ---- --------------- ---------------------------------------------- _ Eller v. State --------------------------------- --------------------- ______________ _ Ellington v. State __________ ___ --------------------- _
204 Ga. 384 204 Ga. 360 205 Ga. 528 203 Ga. 770 204 Ga. 456
Fowler v. State ----------------------------------------------------------------------- 203 Ga. 124
Georgia Public Service Comm. v. Atlanta Gas Light Co. -------------- 205 Ga. 863 Georgia Railroad and Banking Co. v. Redwine,
Revenue Comm. ________ ---------------------------------------------------- 85 Fed. Supp. 749 Garrett v. State _ ------------------------------------------------------------------------------ 203 Ga. 756 Glenn v. State ------------------------------------------------------------------------------------ 205 Ga. 32 Grimes v. State ------------------------------------------------------------------------------- 204 Ga. 854
Hackney v. State ---------------------------------------------------------------------------- 206 Ga. 64 Hardin v. State --------------------------------------------------- ...............-------------- 203 Ga. 6'41 Handspike v. State ---------------------------------------------------------------------- ..-- .. 203 Ga. 115
739
Hines v. State ---------------------------------------------------------------------------------'"- 204 Ga. 1
Holliman v. State _____ ______ ____ ______________________ -------------------------------- __ 205 Ga. 545
Hobbs v. State _____________ ______________________
_______________ 206 Ga. 95
Ingram v. State ---------------------- ----------------------------------------------------------- 204 Ga. 164
Jackson v. State ---------------Jarrard v. State ________________ ___ ___________________ ______________
204 Ga. 47 206 Ga. 112
Johnson v. Dye _________ _____________ ------------------- ------------------- ____________ 838 U. S. 864
Johnson v. State ________________ ____________________ ------------------------------------ __ 204 Ga. 528
Jones v. State ------------------------------------------------------------------------------------ 204 Ga. 761
Kelley v. State ------------------------------------------------------------------------------------ 204 Ga. 239 Lamous v. Yarbrough ------------------------------------------------------------------------ 206 Ga. 50 Leakey v. Ga. Real Estate Commission ---------------------------------- 80 Ga. App. 272
Logan v. State ------------------------------------------------------------------------------------ 205 Ga. 242 Long v. State -------------------------------------------------------------------------------------- 205 Ga. 257
Mathis v. State ----------------------- ___________________________ -------------- _________ 203 Ga. 246
Maynard v. Thrasher -------- ___________________ ------------------------- ______ 77 Ga. App. 316
Moore v. State ------------------------------------ _
------------------------------ 205 Ga. 37
Moore v. Robinson ____________
---------------------------------------------- 206 Ga. 27
McAfee v. State ------------ ______ _ ________ _ ____________ ---------------------- 205 Ga. 545
McBurnett v. State ------------ _
__ -------------------------- _________ _____ 206 Ga. 59
McLendon v. Everett ------------------------------------ ----------------------------
205 Ga. 713
McLendon v. State ____________ ---------------------------------------------------------- 205 Ga. 55
McVeigh v. State ------------------------------------------------- __________________________ 205 Ga. 326
Nelson vs. State ----------------------------- ---------------------------------------------------- 203 Ga. 330 Nunn v. State -------------------------------------------------------------------------------------- 204 Ga. 73
Orange v. State
203 Ga. 294
Park v. State ______ -----------------------------------------'"------------------------------------ 204 Ga. 766 Parks v. State ------------------------------------------------------------------------------------ 204 Ga. 41 Patterson v. State _________ '" _______ ---------------------------------------------------------- 206' Ga. 260 Pressley v. State -------------------------------------------------------------------------------- 205 Ga. 197
Redwine, Revenue Gomm. v. The Southern Co. ---------------- _____________ 206 Ga. 377 Regents of University System of Georgia v. Carroll ____________ 78 Ga. App. 292 Ricks v. State --------------------------------------------------------- _------------------------ 206 Ga. 20
Sanders v. McHan, Warden -------------------------------------------------------------- 206 Ga. 155 Sandford v. State -------------------------------------- --------------------------------------- 203 Ga. 451 Sheppard v. State ------------------------------------------------------------------------------ 203 Ga. 635 Sims v. State -------------------------------------------------------------------------------------- 203 Ga. 668 Smith v. Balkcom, Warden ----------------------------------------------------- _________ _ 205 Ga. 408 Smith v. State ------------------------------------------------------------------------------------ 203 Ga. 317
740
Smith v. State ------------------------------------------ 203 Ga. 569 Smith v. State ---------------------------- ---------------------- 204 Ga. 184 Solesbee v. Balkcom, Warden --------------------------------------- 205 Ga. 122 Solesbee v. State ------------------------------------------------------------ 204 Ga. 16 Southern Bell Telephone & Telegraph Co. v. Georgia
Public Service Commission ----------------------------------------------- 203 Ga. 832 Sullivan v. State ----------------------------------- -------------------- 206 Ga. 181 Swint v. State ------------------------------------------------------------- . ------------------- 203 Ga.430
Tatum v. State -------------------------------------------------------------- --------------------- 206 Ga. 171
Thompson v. 5tate -------------------------------------------------------------------------- 203 Ga. 416
Thompson v. State ------------------------------------------------------------------------------ 204 Ga. 407
Turner v. State -------------------------------------------------------------------------------- 203 Ga. 770
Turner v. Wilburn ------- -------------------------------------------------------
206 Ga. 149
......
Waits v. State ------------------------------------------------------------------------------------ 204 Ga. 295 Wallace v. State ------------------------------------------------------------------------------- 204 Ga. 676 Wallace v. State -------------------------------------------------------------------------------- 205 Ga. 751 White v. State ------------------------------------------------------------------------------------ 203 Ga. 340 White v. State ----------------------------------------------------------------------------------- 203 Ga. 538 Williams v. State -------------------------------------------------------------------------------- 206 Ga. 107 Williams v. State -------------------------------------------------------------------------------- 204 Ga. 837 Woodruff v. Balkcom, Warden -------------------------------------------------------- 205 Ga. 445 Woodruff v. 5tate ----------------------------------------------------- ------------------------ 204 Ga. 17
Zorn v. Walker .... ---------------------------------- . ---------- ------------------- 206 Ga. 181
PART V
Index to Opinions of the Attorney General
742
INDEX TO OPINIONS OF THE ATTORNEY GENERAL
Page
ACCOUNTANTS See Professions, Businesses and Trades
ACTS OF THE GENERAL ASSEMBLY See Constitution of the State Presumption as to validity of Act -----------------------------------------------------------------.467
ADJUTANT GENERAL See Public Defense
ADOPTION See Parent and Child
AD VALOREM TAX See Public Revenue
AGRICULTURAL AND INDUSTRIAL DEVELOPMENT BOARD Citizens Council may not permit translation of Statefinanced material ---------------------------------------------------------------------------------------- 1 Employer, under Teachers Retirement Act --------------------------------------------------136 Signs, placement and removal -------------------------------------------------------------------- 2
AGRICULTURE See Food and Drugs Farmers marketS', equipment, authority to purchase ---------------------------------.427 Soil Conservation Law, land annexation under -------------------------------------------.431
ALCOHOLIC BEVERAGES See Intoxicating Liquors
APPROPRIATIONS County Board of Education may pledge for loan ______________________ 105, 106, 108
ATTORNEY GENERAL See Executive Department
BANKS AND BANKING Automobile loans, limitation on ---------------------------------------------------------------------.440 Banking Board, may be created by Superinttndent ------------------------------r- 14 Branch Banks: Branch Bank Law, application to Fulton County ------------------------------------ 7 Charter amendment necessary to establish ---------------------------------------------- 3 Constitutionality of acts providing for ------------------------------------------------------ 4 Motorized banking service constitutes optration of _______________________________.433 Municipalities, establishment in ---------------------------------------------------------------- 7 Permit, independent, not required ------------------------------------------------------------ 3 Credit Union Act, arbitrary r6jection of application -----------------------------------.434 Depositories, duty to protect public funds ---------------------------------------------------.438 Directors: Notice of proposed increase or reduction -------- ------------------ _____________________.442
743
Page
Stockholding in banks of $25,000 capital -------------------------------------------------- 8 Endorser's remedy on stop-payment -------------------------------------------------------------.442 Exchange:
Collecting bank may not participate -------------------------------------------------------- 10 Legal rate ---------------------------------------------------------------------------------------------------- 9 Over-th-counter transactions, not payable on -------------------------------------- 10 Federal Savings & Loan Ins. Co., investments in ---------------------------------------.443 Negotiable instruments: Liability for improper payment by bank of State check _______________________ .441 Remedy of endorser on stop-payment item ---------------------------------------------.442 Public funds: Deposit of, does not constitute pledge of State's credit _________________________ .435 Duty of depositories to protect -----------------------------------------------------------------.438 Savings & Loan Associations, authorized investments _____________________________.443 Small loan companies: Duty of Superintendent to investigate -------------------------------------------- 12, 15 Interest rate ---------------------------------------------------------445 Unlicensed, duty to prosecute --------------------------------------- 15 Stock ownership requirements for directors _____ ---------------------------------------- 8 Superintendent: Banking Board, may create ---------------------------------------------------- __ 14 Small loan companies, duty to investigate ----------------------------- 15 Superior Court-chartered banks, examination discretionary ----------------- 1:1 Vacancy in office, how filled ---------------------------------- 1fj Superior Court-chartered banks, examination by Superintendent discretionary --------------------- 13 Tax, intangibles, exemption from -------------------------------------.439
BARBERS AND HAIRDRESSERS See Professions, Businesses and Trades
BEER See Intoxicating Liquors
BOARD OF REGENTS See Education
BUILDING SAFETY COUNCIL See Public Safety
BUSINESSES See Professions, Businesses and Trades
CHIROPRACTORS See Professions, Businesses and Trades
CITIZENSHIP Loss of, by conviction ------------------------------------------291 (2) Restoration of -----------------------------------------------292
744
Page
Twelve months residence required to establish __ ---------------------------
CIVIL PROCEDURE See Courts
_____ 2 9 2
COMMISSIONER OF AGRICULTURE Cannot commit crime in official capacity ---------------------------------------------------- 80
COMMISSIONER OF LABOR See Industrial Relations
COMMISSIONERS OF ROADS AND REVENUES See Counties
COMPTROLLER GENERAL Sheriff need not report fees to ------------------------- ________________________________________ 64
CONGRESS See Elections
CONSTITUTION 01<, THE STATE
Amendments:
Newspapers, number and selection of _____________ ----------------------------------------- 17
Substitution of 1945 for 1877 Constitution -------------------------------------------.446
Voting on each amendment ------------------------------------------------------------------------209 Branch Banks
Ga. L. 1927, p. 197; G.L. 1929, p. 124 and Ga. L. 1929,
p. 214, valid ------------------------------------------------------------------------- -------------------- 22
Constitutional officers, who constitute _____
--------------------------- ____________ 161
Constitutional provisions, how implemented ---------------- ------------------
37
Local legislation, notice of:
Evidence of publication, requirements --------------------------------------- ______ 22, 37
New notice, when required ------------------------------------------------------------------------ 24
Time of publication ------------------------------------------------------------ 22, 23, 24 (2), 37
Photographers, act regulating is unconstitutional -------------------------------------- 332
War Veterans Children Education Act invalid -------------------------------------------.417
CONTRACTS
Automatic renewal ------------------------------------------------------------------------------------------ 25 Autopsy ------------------------------------------------------------------------------------------------------------338 Concessions --------------------------------------------------------------------------------------------229, 350 Conditional sales, recordation necessary ------------------------------------------------------- 26 Gaming contracts, recoverability of payments under ---------------------------------.447 Hospitals, with patient or survivor for autopsy --------------------------------------------338 Independent school districts with county boards .-----------------------------------------514 Jekyll Island Park, dock concession -----------------------------------------------------229 Limitations, statutory period -------------------------------------------------------------------------- 26 Negotiations are merged in contract ------------------------------------------------------------573 Public Health Department, construction of hospitals ------------------------------------340 State Highway Department:
Unauthorized person may not bind --------------------------------------------------------'-- 27
745
Page
Ratification by estoppel ------------------------------------------------------ _ -------------------- 27 State Parks:
Concessions ------------------------------------------------------------------------------------------------ 350 Construction --------------------------------------------------------------------------------------------------227 Easem*nts, permanent, Director may not grant --------------------------------------230 Professional services ------------------------------------------------------------------------------------227 Souvenirs, manufacture of --------------------------------------------------------------------------354 Uncompleted buildings, additional work ---------------------- -----------------------------228 State Ports Authority:
Insurance ------------------------------------------------------------------------------- ---------------------.418 Lease of lands ----------------------------------------------------------------------------------------------419 Textbooks, 90-day clause valid ---------------------------------------------------------------------- 88 Timber rights, nature of grant of -----------------------------------------------------------------.44 7 Usurious, forfeiture of inttrest ----"---------------------------------- _______________.449 Warm Springs Memorial: With photographers for photographs ----------------------------------------- ________________354
Souvenirs, manufacture of ---------------------------------------------------------------'-----354 With Warm Springs Commission for lease of equipment ______________351, 353
CONVICT LABOR See Penal Institutions
CORONERS
Code provisions relating to duties ------------------------------------------------------------------ 29 De facto --------------------------------------------------------------------------------------------'------'-----.449 Inquests, payment of cost ---------------------------------------------------------------------------- 450 Investigation fees where no inquest ------------------------- ___________________________________ 30
CORPORATION5
Debentures not capital stock ---------------------------------------------------Electric Membership Corporation, change of name _____ _
___________ _451 _________ .452
Foreign:
Incorporation requirement, where excessive land ownership _________________ .451
Motor carriers, service of process on -------------------------------------------------------
Non-profit, no distinction as to fees ---------------------------'- 31 Powers denied Georgia corporations, may not exercise __ ______________ .. 289
Realty, ownership of restricted --------------------------------------------- _
.289
Recognition only by comity -----------------------------------------------------
.289
Service of non-resident motor carriers ------------------------------------
____ 31
Public Utilities, returns for taxation ------------------------------------- ____________________ .453
COUNTIES:
Advertising: Figures counted in computing cost -------------------------------- _ ___________________ 33
Punctuation marks not counted ------------------------------------------------------- __ 32, 33 Boards of Health, may not make assessments for meat inspection ___________ .429 Bond premiums:
Payment by county permissive only ------------------------ _____ ______ : __________________ .460
74()
Page
State participation in payment not authorized -----------------------------------------.456 Commissioners:
Bonds required ---------------------------------------------------------------.462 Contributions to recreational clubs prohibited ------------------- 35 As county officers -----------------------------.4()2 Defect in bill increasing term -------------- ----------------------------.467 Justice of Peace may be ---------------------------------------------------- 42 Quorum for transaction of business -------------------------------------------.454 State Board of Education member may be -------------------------------- 34 Compensation, change of basis ------------------------------ 455 Contributions to recreational clubs prohibited --------------------------- 35 County line:s, general law required for change -------------------------------------.454 County organ: Advertising, sale at less than legal rates ------------------------------------.469 Requirements ---------------------------------------------------------------------------- 36 Selection or change of --------------------------------------------------------------.469 Tax list, publication must be made in -------------------------------------.470 DeKalb, self-succession by Board membe:rs prohibited ----------------- 95 Fulton, establishment of branch banks ------------------------------------- 7 Hospital authority, powers of ------------------------------ 36 Land Processionaries, ordinary entitled to appointment fee ----------.455 Malt beverages, may not levy excise tax upon -------------------------------598
Officers: Commissioners are county officers -----------------------------------------------------.462 Fees, provision for, includes constable ----------------------------------- 38 Salaries, notice of intention to apply for supplement ---------- 37 Statutory authority for supplement required -------------------- 37 Tax collectors, compensation for entries on voters books --------------------548
Ordinaries; both county and judicial officers ----------------------------------.482 Processionaries, land, ordinary entitled to appointment fee --------------------.455 Salaries, officers, notice of intention to apply for supplement ------------------ 37 Soil conservation supervisors, how ekcted --------------------------------------.458 Supplies, mortgage recording forms, paid by whom _------------------------------ 39 Tax Assessors:
Former assessors, eligibility as registrar -------------------------------------------------.457 Milk control board, may not be member of -----------------------------.462 TurnkE:y fees, payment ---------------------------------------------- 67 Welfare Board member, de factor --------------------------------------------------.466
COUNTY BOARD OF EDUCATION See Education
COUNTY HOSPITAL AUTHORITY See Counties
COUNTY SUPERINTENDENT OF SCHOOLS See Education
747
Page
COURTS Civil, pleading and practice in -----------------------------------------------------------------------.471 Constables: Not county officers ----------------------------------------------------------------- _________________ _4 72 De facto deputy sheriff ------------------------------------------------------------------------------ 41 Duties -------------------------------------------------------------------------------------------------- 40, 475 Fees ------------------------------------------------------------------------------------------------------------- 40 Privileg:s and criminal jurisdiction -----------------------------------------------------------.4 73 Costs on appeal by bill of exceptions --------------------------------------- ___________________ _475 Criminal procedure: Jury, private knowledge on part of ---------------------------------------------------------.494 Unanimous verdict required for conviction -----------------------------------------------.495 Jurors:
Compensation of ------------------------------------------------------------------------------------------ 41 Private knowlE:dge of ----------------------------------------------------------------------------------494 Jury, unanimous verdict required for conviction in criminal case ___________ _495 Justices of the Peace: Code sections and fees applicable to ------------------------------------------------------------51 Costs:
PaymE:nt by counties -------------------------------------------------------------------------------- 44 Warrants -------------------------------------------------------------------------------------------------- 43 County commissioner may be ---------------------------------------------------------------------- 42 De facto ------------------------------------------------------------------------------------------------------ 480 Failure to elect, who may act -------------------------------------------------------------------.478 Fees and code sections applicable ---------------------------------------------------------------51 Fees in traffic violation cases -------------------------------------------------------------------- 49 Hour and date of holding court, change in -------------------------------- ------------- 53 July 4th, court may be held ______________ :______________________________________________________ _478
Mayor may act as -----------------------------------------------------------------------------.476, 478 Number in each district -------------------------------------------------------. _____________________ _4 77 Oath, may not administer to ordinary ------------------------------------------------------ 47 Oath, authority to administer ---------------------------------------------------------------------- 47 Vacancy, election is for unexpired term ---------------------------------------------------- 46 Warrants, costs of issuing ------------------------------------------------------------------------ 43 Juvenile Courts: Judges, qualifications ---------------------------------------------------------------------------------- 53 Jurisdiction, E:ffect of method of creation ------------------------------------------------ 53 Juvenile, definition -------------------------------------------------------------------------------------- 53 Mayor's Court, jurisdiction of traffic violations ----------------------------------------..481 Oaths, authority of Justices to administer -------------------------------------------- 47 (2) Ordinaries: Absentee ballots, when handled by ----------------------------------------------------------203 Bonds <>f, approved by Superior Court Judgl':s ---------------------------------------- 60 Gosts, limitation -------------------------------------------------------------------------------------------- 56 Fees:
Land processionaries, appointment of ---------------------------------------------------.455 Public safety cases ---------------------------------------------------------------------------------- 56 Fin:s for traffic violations, disposition ---------------------------------------------------.484
748
Page
Fines, maxhnum ---------------------------------------------------------------------------------,--------.484
Judicial as well as county officers -----------------------------------------------------------.482
Jurisdiction and powers of, gE:neral ---------------------------------------------------------- 58
Jurisdiction in traffic cases -------------------------------------------------------------- 57, 483
Land processionaries, entitled to fee for appointment of ----------------------.455
Oath, may not be administered by Justice of the PE:ace -------------------------- 47
Public safety violations, authority to try ------------------------------------------------- 57
Teachers Retirement payments to insane benE:ficiary ------------------------------129
Police Courts, jurisdiction in traffic cases ---------------------------------------------------.485 Reporters:
Fees:
F&lony charge resulting in misdemeanor conviction ---------------------------- 6'1
Population basis, may be determined on ------------------------------------------------ 62
Per diem not affected by Section 24-3104 ---------------------------------------------.487
Proceedings to be recorded, how dE:cided -----------------------------------------------.486
Rules of construction, when "may" is mandatory ---------------------------------------- 63
Sheriffs:
Bonds, approved by ordinary ---------------------------------------------------------------------- 60
Constables as de facto deputies ---------------------------------------------------------------- 41 Fee:s:
Arrest:
County police making, effect ------------------------------------------------------------393
Conducting prisoner to court and attendance ---------------------------------------.487
In criminal -cases -------------------------------------------------------------------------------------.488
Report to Comptroller General, need not file ----------------------------------------64
Tax fi. fas., nulla bona return ------------------------------------------------ 63
Turnkey, liability for ---------------------------------------------------- 67
Solicitor General, duty to prosecute gaming law violators --------------------- 72
Superior Courts:
Clerks, bonds approved by ordinary -------------------------------- 60
Declaratory judgments, clerks' fees -----------------------------------------.490
JudgE:s, assignment during illness of local judge ------------------------------ 67 Judge Emeritus, qualifications and procedure for appointment ______ 64, 65
Per diem charges, where hE:ld in another county ----------------------,----------- 66
Sessions, may be held in any county in district ------------------------------------- 66 Solicitor General, no specific appropriation for retirement fund ..........489
Summons, Jury, by whom issuE:d -----------------------------------------.489
Witnesses, extradition of ---------------------------------------------------------
..... 490
CRIMES AND PUNISHMENT Abortion, Code provisions relating to ------------------------------ ..... ----------------- 6'8 Bingo game as constituting lottery ----------------------------------------------------- 73 Capital punishment:
Crimes for which inflicted ------------------------------------------------------------------- 69 Life imprisonment, may be commuted to ------------------------------------------------- 69 Corporal punishmE:nt for crime, prohibited --------------------------------------------- 70 Door prizes as constituting lottery ------------------------------------------------------ 73, 76 Fair Trade Act, posting of services charges ---------------------------------------------- 71 Firearms, unlawful possession --------------------------------------------------------.491
749
Page
Gambling:
Prosecution instituted by Solicitor General ---------------------------------------------- 72
Prohibited in pool rooms ------------------------------------------------------------------------------ 78 Manslaughter, when automobile owner not chargeable with ______________________ 78
Minors:
Pool rooms, when may be admitted to ------------------------- __________________ _
78
Responsibility for criminal acts --------------- -----------------
72
Motor numbers, obliteration of ------------- ________ ___________ ______________ ----- ___________ 70
Pollution of waters -------------------------------
_______________ .. .............493
Pool Rooms:
Gambling devices prohibited --------------- _____________ ____
78
Minors may be admitted, when --------------------------------
_____________________ 78
Public officE:r cannot commit crime in official capacity ___________ ____________ 80
Sabbath violation, sale of motor oil ------------------------------------------ _________________ .494
Serial numbers, obliteration of --------------------------------
---- -------------- 70
Slot machines ---------------------------------------------------------
. ----------- 75, 76
Sodomy, Act of 1949 not retroactive ------------------------ ____________ _________________ .494
Suit clubs, as constituting lottery --------------------- ____ _______
_________________ . 4 9 2
Trading stamps, as constituting lottery --------------- __ _ ------------------------ .492
CRIMINAL PROCEDURE
Alternative punishments, effect of excess ________ _
------------- -------------- 81
Jury:
Private knowledge on part of ---------------------------------
------------- ___________ .494
Unanimous verdict required for conviction on criminal charge _____________ .495
DENTAL NURSES See Professions, Businesses and Trades
DENTISTS See Professions, Businesses and Trades
DEPARTMENT OF AGRICULTURE See Agriculture
DEPARTMENT OF FORESTRY AND GEOLOGY See Forestry and Geology
DEPARTMENT OF PUBLIC HEALTH See Public Health
DEPARTMENT OF PUBLIC SAFETY See Public Safey
DEPARTMENT OF REVENUE See Public Revenue
DEPOSITORIES
Protection of public funds ------------------------------------------------- -----------------.---- ......438 Savings and Loan Associations:
County Board of Education may deposit surplus funds __________________________ 108
750
Page
Teacher Retirement, insurance covers up to $5,000 in each depository ---------------------------------------------------------------------------------- _____ 137
DIVORCE AND ALIMONY Divorce: Grounds -------------------------------------------------------------------------------------------------------- 83 Insanity of defendant as ground ---------------------------------------------------------------.496 Interlocutory decrees ---------------------------------------------------------------------------------- 83 Marital status not affected by Mexican decree ---------------------------------------- 84 Procedure ------------------------------------------------------------------------------------------------------ 82 Residence requirements ------------------------------------------------------------------------ 83, 85 Service requirements ------------------------------------------------------------------------------------ 85
DRIVERS LICENSES See Public Safety
EDUCATION Appropriations by city for school property not owned by it _____________________ _497 Bonds: Leased property, use of proceeds for maintenance ------------------------------- 112 Proceeds, use of ---------------------------------------------------------------------- 112, 124, 125 Bookmobiles, public liability insurance ---------------------------------------------------- 86 Building standards, no uniformity -------------------------------------------------------------- 86 City Board: Appeals from -------------------------------------------------------------------------------------------- 87 Self-succession of members -------------------------------------------------------------------.498 Contracts, county boards with independent systems ________________________________514 County Boards: Action by or against, in what name ------------------------------------------------------ 97 Assessments, paving, payment by -------------------------------------------------------- 99 Athletic contests, transportation of pupils -------------------------------------------- 88 Bond elections for county system, call of ----------------------------------------------504 Consolidation of schools, authority vested in ----------------------------------------502 Deposit of reserve funds in Building & Loan permitted ____________________108
Elections; exceptions --------------------------------------------------------------------------------503 Fees for consumable materials, collection prohibited -------------------"------110 Lease, long-term, may not make ----------------------------------------------------------101 Leased property, maintenance expenditures permitted ________________________ 112 Loans:
Constitutional authority not extended by Art. 7, Sec. 7 par. 4 ...... 113 Limitation on ----------------------------------------------------------------------------------------107 Limited by Constitutional limit on county loans ------------------ 105, 106 State appropriations may be pledged for ---------------------- 105, 106, 108 Maintenance of schools: Apportionment of funds ------------------------------------------------------------------------108 Duty of maintenance -------------------------------------------------------------------------------.108 Management of county schools by ---------------------------------------------------- 94, 98 Members: Elective office in county, may not hold ------------------------------------------------111
75.1
Page
Justice of the Peace, may servG as .......................................................-499 Qualifications ................................................................................ 96, 501 Selection ....................................................................................................510 Self-succession .......................................................................................... 95 Term of office .......................................................................................... 90 Terms of, under Constitutional reorganization ....................................103 Validity of appointmE:nt where no commission issued ..........................103 Paving Assessments, paymE:nt of .............................................................. 99 Property: Personal, power to mortgage ..................................................................104 Real:
Conveyances of, may accept ................................................................101 Purchase of, at end of five years, agreement invalid ......................101 Unsuitable, power to sell ....................................................................101 Public liability insurance, mandatory; permissive ..................................512 Pupils, responsibility for detE:rmining race of father ..............................506 Recreational funds, custody of .................................................................. 98 School Districts, transfer of pupils ............................................................100 "Subdivisions authorized to levy taxes", Board not included in term .......................................................................................................113 Timber on school property, to determine use ............................................110 Title to school lands vested in ....................................................................499 Transportation of pupils, by whom determined ........................................114 Transportation of pupils to athletic contests ............................................ 88
Trustees, appointment of .---505 Unsuitable property, power to convey ......................................................101 Vacancies, how filled ...................................................................................502 Vaccination as requirement for admission ................................................ 98 County School Superintendent: Funds, use of for county lighting system ..................................................119 Independent system, member of may not vote for ........................ 115, 117 Qualifications for .............................................................. 117, 120 (2), 122 Independent School Systems: Contracts with county boards ......................................................................514 Merger with county system ........................................................................513 Insurance, public liability not rGquired for bookmobiles Insurance, public liability-permissive; mandatory ----------------------------512 Libraries: Bookmobiles, public liability insurance ------------------- 86 Contracts for establishment and maintenance ..........................................122 Educational projects ....................................................................................515 Physical Education, regulations, appeals from .............................................. 87 Post Schools, State contribution ....................................................................516 Property: County Board to determine use of timber -----------------------------110 Leased, expenditures for maintE:nance permitted ......................................112 Lease, long-term, County Board may not make ......................................101 Personal, County Board may mortgage ....................................................104
752
Page
Timber, County Board determines use ------------------------------------------------------110 Unsuitable, power of County Board to sEoll ------------------------------------------------101 School Boards, control pupils en route to school ----------------------------------------123 School Districts, authority of County Board to transfer pupils __________________ 100 State Board: Appeals from County Board ------------------------------------------------------------------------521 Appeals to, not timely made ------------------------------------------------------------------------128 Appellate jurisdiction Eoxclusively --------------------------------------------------------------128 Classification of grades ------------------------------------------------------------------------------523 Mf:mber may be County Commissioner ---------------------------------------------------- 34 Reimbursem*nt by, for sums received pursuant to contract __________________ 129
Remand to County Board ----------------------------------------------------------------------------521 Removal of department heads and tmployees --------------------------------------------517 Timber, disposal of from land held conditionally ------------------------------------125 Transportation of pupils, may prescribe minimum standards ________________ 128 State and County Boards, members must take loyalty oath ________________________ 525 State Superintendent, may not nominate Superintendent of Academy for Blind --------------------------------------------------------------------------------------525 'Teacher compensation, no discrimination betwef:n sexes ____________________________525
Teacher Retirement: A&IDB is "employer" ----------------------------------------------------------------------------------13&' Athletic coaches arE not "teachers" ---------------------------------------------------------149 Contributions, payment to murderer husband of member wife -------------- 534 Contributions, retroactive, not provided for --------------------------------------------535 Death beneficiary, rEotirement application signed by --------------------------------133 Department of Roads and Revenues is "employer" ----------------------------------528 Deposits: Insurance of, with Savings & Loan --------------------------------------------------------137 May be placed with Savings & Loan ------------------------------------------------------137 Eligibility of athlEotic coaches ----------------------------------------------------------------------149 Eligibility of officer of Georgia Teachers Education ______________________________ 131
Employer: Prior service credit ----------------------------------------------------------------------------------136 A&IDB is "employer" ------------------------------------------------------------------------------136 DepartmEont of Roads and Revenues is "employer" ----------------------------528 Employer operating local system, employee ineligible ________________________ 535
Employment continuance after retirement age ------------------------------------532 Insane person, procedure for payments to --------------------------------------------129 Membership is condition of employment ------------------------------------------------135 Prior strvice credit:
Not given for services in 1944 ------------------------------------------------------------136 ''Employer'' defined ----------------------------------------------------------------------------136 Upon transfer from local to State system ----------------------------------------537 Reemployment, effect on rEotirement pay --------------------------------------------529 Retirement, requirements for ----------------------------------------------------------------132 Supplement to retirEoment pay ----------------------------------------------------------------535 Time of entering profession, limitation on ------------------------------------------134 Transportation of pupils, taxation of buses ------------------------------------------------538
753
Page
Tuition; payable by non-resident owner of Georgia property ______________________ 140
UnivHsity of Georgia: Athletic Association, may incorporate for financial purposes ________________ 141 Athletic coaches, not "teachers" under Teachers Retirement ________________ 149
Athletic Funds, misappropriation, jurisdiction ----------------------------------------143 ME>dical scholarship, when may be paid ----------------------------------------------------145 Veterinary School, vehicles may be purchased to transport
pupils to and from farms ------------------------------------------------------------------------146 University System of Georgia:
Retention of stocks held under trust ---------------------------------------------------------.538 Salaries, i!lE>gal payments of ---------------------------------------------------------------------.540 WGST, employment of technical experts --------------------------------------------------542 Veterans Education Program, matching fund paid by --------------------------------149 Visiting Teachers:
Employed by whom --------------------------------------------------------------------------------------543 Salaries paid by whom ------------------------------------------------------------------------------.544
ELECTIONS
CandidatE:s:
City Solicitor, vacancy, how filled --------------------------------------------------------------159
Constitutional officers, who constitute -----------------------------------------------------161
County Board member not eligible for elective office ----------------------------.111
County Officers
Five perc@t law not applicable to ------------------------------------------------- _____ 154
Primary, qualification date for ---------------------------------------------------- ____ 156
Qualifications; by whom elected -------------------------------------------- __
.. 163
Five Percent Law:
County officers, not applicable to -----------------------
_____ ------ _______ 154
Ambiguous, in discretion of ordinary to interpret ___ _____ ________________ 157
GE>neral Assembly, need not run in county primary -------------------------------.150
Governor, opening of returns -------------------------------------------------------------------.155
Independent:
Listing under Secret Ballot Law ------------------------------------------------------------160
Time and manner of qualification ----------------------------------------------------------158
Justices of the peace, time for qualifying ------------------------------------------------161
Qualification for public office ----------------------------------------------------------------153
Secret Ballot law, listing of indE:pendent candidates --------------------------------160
State Senators:
Primary:
Notice of candidacy, time -------------------------------------------------------------------151
Where held ----------------------------------------------------------------------------------------233
General election, time of notice ----------------------------------------------------151, 157
Genua! Assembly; vacancy filled by special election --------------------------------163
Managers and clE:rks, compensation, how fixed --------------------------------------------546
Primaries:
Ballots, removal from polling place prohibited ----------------------------------------166
General election machinery, utilization prohibited ------------------------------------165
Qualifications of Voters:
Age, time as of which determined __ ------------------- ---------------------------------------167
754
Page
City election, how affected by failure of county to qualify --------------------547 County school superintendent, resident of indepE:ndent system
may not vote for --------------------------------------------------------------------------------------115 Determinative date where county has not qualified --------------------------------547
GE:neral election, six months residence ------------------------------------------------------193 Handicapped persons may receive assistance ________________ 175, 204, 205, 209
Illiterate persons ------------------------------------------------------------------------------ 168, 175 Municipal elections, fixed by charter --------------------------------------------------------172
Poll tax not requirE:d ------------------------------------------------------------------------------------17 4 Primary:
Residence determined as of date of general election __________________ 170, 171
Registration requirE:ments --------------------------------------------------------------------------169 Residence:
County primary, length fixed by party --------------------------------------------------169 Question of fact, based primarily on intention ____________________________ 169, 171
Wet and dry elections ----------------------------------------------------------------------------------173 Registrar not county officE:r ----------------------------------------------------------------------------454 Registration of Voters:
Closing date ----------------------------------------------------------------------------------------179, 180 Lists of Voters:
By whom prepared ---------------------------------------------------------------------------------559
Cost of, how paid ------------------------------------------------------------------------------------183 Military service, registration requirE:ment not waived ____________________________ 182
Non-residents: Absence as disqualifying, in discretion of Registrars ------------------------ 180
Striking of name -------------------------------------------------------------------------------------180 Voting residence in county not actual rE:Sidence, how determined ......558
Oath, need not be read to applicant -------------- -------------------------------------------558
Primaries, time for completing lists --------------------------------------------------------178
Registrars, duties of ------------------------------------ .-----------------------------------------------176 Registration for absentE:e ballot ------------- ___ ---------------------- _______________________558
Registration Act:
Application of --------------------------------------- ________________________ .. ______________ .........548
Municipal elections, not applicable to ------------------- . ------------------- ______ ... 552
Registrations, where effected ----------------------------------------------------------------------558
Rejection of applications for rE:gistration, when justified
_________ 556
ELECTIONS
Registration of Voters: Special elections under old law --------------------------------------------------------552, 554 Tax collectors, compensation of ---------------------------------------------------------------548 Tax commissionE:r's function that of deputy ----------------------------------------------557 Time when registrations accepted --------------------------------------------------------------554 Transfer of registration ----------------------------------------------------------------------181, 204 Transfer after county primary ------------------------------------------------------------------183 Voters books who may take charge of --------------------------------------------------------178
Soil conservation officE:rs, how elected ------------------------------------------------------'--.458 Soldiers Vote Law, expired January 1947 --------------------------------------------184, 188
755
Page
Voting by Mail: Absentee ballot, registration prerequisite ................................................558 Available to whom ...................:....................................................................545 Ballots:
Application for, date -------------------------------------------------------19 3 Where counted -----------------------------------------------------------------------207 Handled by Board of Registrars or Ordinary ........................................203 Mailing by registrars required ----------------------------------------------------------------208 Request for, time --------------------------------------------------------------------------------169, 193 Municipal or city elections, not applicable ----------------------------------------------208 Notice of intention:
Time of filing ----------------------------------------------------------------------------------------192 Who may give ------------------------------------------------------------------------------------------203 Primaries, permitted in -------------------------------------------------------------------------------193 Wet and dry elections:
Petition for, signed by -----------------------------------------------------------------------------173 Qualification of voters for --------------------------------------------------------------------------173 Where, When and How Held:
Ballot, use of sample by voter permitted -------------------------------------------------205 Boxes, when opened ------------------------------------------------------------------------------------209 Militia district, voting outside ----------------------------------------------------------200, 204 Primary:
Majority or plurality system, choice by party authorities <------------192 Time for holding, how fixed ---------------------------------------------------,------------190 Secret Ballot Law: Grand Jury recommendation is mandatory ................:.................201, 202 Intention determines whether adopted by Grand Jury ____,___________________ 202
Write-in votes valid ------------------------------------------------------------------206, 211 (2)
ELEEMOSYNARY INSTITUTIONS Milledgeville State Hospital: Re.quests to, construed as for benefit of Welfare Fund ..........................560 Discharge of patient committed under special plea ----------------------------------561 Marshal, power of appointment of, transferred -------------------------------------213 Readmission of absent patients -----------------------------------------------------------------213 Sanity, proceedings for legal restoration of ------------------------------------------212 Special plea, discharge -of patient committed under ................................561
EXECUTIVE DEPARTMENT Agricultural and Industrial Development Board: "Employer", under Teachers Retirement Act ..........................................136
Signs, placing and removal by contract ---------------------------------------------------- 2 Translations of state-financed material, Citizens Council
may not permit ---------------------------------------------------------------------------------------- 1 . Attorney General and Department of Law:
Labor legislation, may not rule on ------------------------------------------------------------243 Milk Control Board represented by ----------------'c'---------------------223 Public officer under indictment, may not assist ...................................... 80 Governor: Contingency funds, may use when ------------------------------------------------------------215
756
Page
Dissolution of sheriff's commission before adjudication on charges ......................................................................................216
DomE::stic wines, temporary reduction of tax ............................................598 Great Seal of State, use by private concern ............................................238 Inauguration prior to convening of General Assembly ............................216 State property, unserviceable, may dispose of ..........................................349 Governor (Acting) Appointment by, for term less than fixed by legislature ..........................563 Validity of acts under invalid appointment by ........................................56'3 LiE::utenant Governor, subsistence and mileage expenses ............................564 Merit System: Appeals from dismissal, time for ................................................................217 Loyalty oath:
"Affirm" may be substituted for "swear" ............................................565 Citizens of other states may not subscribe ............................................566 Forms, no provision made for filing ......................................................567 Transfer of E::quity in local system to State system ..................................568 Supervisor of Purchases: Latitude respecting purchase of goods made outside Georgia ................568 Lease of property for National Guard, must exE::cute ..............................218 Materials not required to be purchased through .......................................570 Specifications, authority with respect to establishing ..............................570 Technical instruments, purchase by optional ............................................219 Veterans Education Council, matching fund payments ................................149
FARMERS MARKET See Agriculture
F.D.R. WARM SPRINGS MEMORIAL COMMISSION See Warm Springs Memorial Commission
FINES Game and fish violations, disposition ......................................................:.....231
FOOD AND DRUGS BrE::ad, compulsory enrichment of ................................................. ................. 1 Dairies and Dairy Products: Cooperative marketing, distribution of income ........................................220 Milk Control Board, may not employ counsel ..........................................223 Oleomargarine, stamptax ............................................................................224 Powdered milk products, sale and distribution ..........................................221 Drug DE::partment, under State Board of Pharmacy ....................................220 Meat inspection, boards of health may not make assessments for ............429 Milk Control Board: Regulatory tax, application to veterans ....................................................428 Tax assessor may not serve as member ....................................................462 CounsE::l, may not employ ............................................................................223
7.57
Page
FORESTRY AND GEOLOGY Forestry:
Fire protection tax not limited --------------------------------------------------------------------226 Forest fires, payment of cost by person causing --------------------------------------225 Minerals, lease of rights ----------------------------------------------------------------------------------226 State Parks: No commercially-restricted area surrounding ------------------------------------------229 Contracts:
Construction work, controlled by Budget Bureau -------------------------------22'7: Dock concession to commercial vessels -----------------------------------------------229 Insurance, Warm Springs Memorial may not make ------------------------57Z' Leases, n(:gotiations merged in contract -----------------------------573: Negotiation for addition~! work on uncompleted contract ------------------22s; Professional services, controlled by Budget Bureau -----------------------------22'r Easem*nts, perman(:nt, may not grant -----------------------------------------------------230 Exemption from taxation, basis of -----------------------------------------576 Gross receipts from operation of facilities, what constitutes ------------------573 J6kyll Island docks, may grant concession --------------------------------------------229 Jekyll Island Park, operators liable for tort -------------------------------------------.425 Leases, negotiations merged in contract ----------------------------------------------------573 Revision of contract for operation of facilities, how made --------------------575 Transportation charges incurred by predecessor dir6ctor ------------------------572 Warm Springs Memorial: May not insure property -------'-----------------------------------------------------------------572 Minors under 14 years, may not employ ----------------------------------------------574
GAME AND FISH Fines and forfeitures, disposition __ .______ ....... ___ .---------- ___ .__ -------------.------------------2 31 Fish, fresh water, sale of ------------------------------------------------------------------------231, 232: Game and Fish Commission: Discharge of employees may be d6legated ------------------------------------------------579' Tax, enforcem(:nt of payment on transported fish --------------------------------578: Transportation of fish beyond State boundaries --------------------------------------578 Game fish and shrimp, regulations regarding -------------------------------------577 Hunting, night ------------------------------------------------------------------------232' Pheasants, commercially raise, sale prohibited ---------------------------------577 Pollution of State waters -------------------------------------------493 Salt Water Fish regulations regarding game fish and shrimp ....................577 Trespassing, notices how posted and recorded ----------------------------------580 Wildlife Rangers: Bond optional with Commissioner -------------------------------------------------579 Bond, payment by whom ---------------------------------------579 Salari6s not limited by law ---------------------------------------579 Warrants, may not serve ---------------------------------------------579
GENERAL ASSEMBLY Members: Board of Education, may serve as member ---- -------------------------582 Jurors, not automaticaly disqualified as ....................................................583
758
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Naval Reserve officer, eligib- e ______________________ -------------- ------------------- _______ 234 Office holders ineligible .------------------------------- __ ------------- ____ --------------------------235 Senators, rotation system of selection ------------------------------------------233 State Hospital Authority director, member may be ................................236 Taxes, default in payment is bar to seating --------------------------------------------583
GEORGIA BUREAU OF INVESTIGATION Suggested forms of credentials ......................................................................237 Employee subject to Workmen's Compensation Act ....................................424
GEORGIA STATE PATROL See Public Safety
GRAND JURY Secret Ballot Law, adoption by ......................................................201, 202 (2)
GREAT SEAL Unauthorized use forbidden
HAIRDRESSERS See Professions, Businesses and Trades
HEALTH See Public Health
HOLIDAYS Justice of the Peace may hold court on July 4th ........................................478
HOMESTEAD EXEMPTIONS See Public Revenue
HOSPITAL AUTHORITY See Counties
HUSBAND AND WIFE Marriage recording statutes ..........................................................................239 Marriageable age ....................................................................,...........,..........238 .MiscE:genation statutes .......................................................,....,........,..............241
INCOME TAX See Public Revenue
INDEPENDENT SCHOOL DISTRICTS See Education
INDUSTRIAL RELATIONS Discharge of employee, no notice required ....................................................242 Labor legislation, Attorney General may not rule on ................................243 Labor unions, laws relating to ......................................................................245
INQUESTS See Coroners
759
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INSURANCE Capital, charter provisions do not control ....................................................250 Deposit: Fire Company, additional deposit required to write casualty ................247
Revenue anticipation certificates not acceptable as --------------------245 Excess Insurance Agents Law, no effect on Motor
Common Carriers Act ----------------------------------------------------------------585 Foreign corporations, investment in real estate -------------------------------------584 Hospitalization, agreement with manager to share in dues is invalid ........248 Hospital service Non-Profit Corporation distinguished
from profit corporation -----------------------------------587 Mutual company, unlimited assessments invalid ---------------------------------249 Real estate, investment in by foreign corporations --------------------------------------584 Retaliatory tax not applicable to gross premium taxes ---------------------------252
INTANGIBLES TAX See ~blic Revenue
INTOXICATING LIQUORS Alcoholic Beverages: Analysis to determine taxability, duty of Revenue Department --------------255
Dry counties, limit on possession --------------------------------------594
Income tax evasion, effect on eligibility to manage liquor store ............595
Interval between election and commencing operations ............................255
Licenses:
.
By whom issued --------------------------------------------------------------:254 No refund where payment voluntarily made .........:..................:...........593
Liquor store, effect of conviction of income tax evasion
on eligibility to manage ---------------------------'-----------....595 Naval installation:
Exempt from Georgia tax -----------------------------------,,-------------,----591 Export stamps required on shipments to ------------------------------------592 Possession in dry county ------------------------------------':...............256 Possession of unstamped whiskey is illegal ---------------'------'--594
Refund on exchanged goods ---------------------------------------258 Refund of license fees voluntarily paid -----------------------------'--593 Taxing and control authorized by election -----------------------252 Unpotab1e liquors, 15c per wine gallon tax inapplicable ------.-254, 255 Alcoholic Bf:verages, Wines and Malt Beverages: Dry counties:
Limit on possession of spirituous, vinous or alcoholic liquor -------596
Licenses; transfer from deceased licensee ---------------------------265 Malt Beverages:
Election day, restriction on sale of ------------------------------598 Excise tax on, county may not levy -------------------------.-------------598
Gift to cafe customers -------------------------------;--------597 Licenses:
By whom issued ------------------256, 264 Requirement as to non-resident business ----------262
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Municipality may not engage in sale of ................................................260 Permit is privilege, not right ........................................................257, 264 Possession in dry county ........................................................................59(} Price fixing under Fair Trade Act ........................................................264 Sold under State and local permits ........................................................253 Taxes, commissions on, who entitled ....................................................264 Transportation of untaxed liquor ----------------------------------------266 Wines: Domestic:
Possession in dry county ----------------- ....... ------------------596 Restriction on sale in dry county --------------------------------599 Tax reduction -----------------------------598 Non-domestic; possession in dry county ................................................599 Possession of non-domestic wines in dry county ..................................599 Sale of domestic wines in dry county ....................................................599 Vinous liquor, possession in dry county ................................................596
JURY Compensation and duties ---------------- 41
JUSTICES OF THE PEACE See Courts
JUVENILE COURTS See Courts
LIVE STOCK Grazing in more than one county, personal property tax ............................361
LOCAL OR SPECIAL ACTS See Constitution of the State
LOCAL SCHOOL DISTRICTS See Education
LUNACY PROCEEDINGS State Hospital, qualifications for commitment ............................................600 Residence, no specified time ---------------------603
MALT BEVERAGES See Intoxicating Liquors
MARKETING ASSOCIATIONS Profits from, how distributed ........................................................................220
MERIT SYSTEM See Executive Department
MILK CONTROL BOARD Counsel, may not employ ................................................................................223 Rfgulatory tax, application to veterans ........................................................428 Tax Assessor may not serve as member of ....................................................462
MILLEDGEVILLE STATE HOSPITAL See Eleemosynary Institutions
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MOTOR CARRIERS See Corporations
MOTOR FUEL TAX See Public Revenue
MOTOR VEHICLES See Public Safety
MOTOR VEHICLE SAFETY RESPONSIBILITY ACT See Public Safety
MUNICIPAL CORPORATIONS Annexation, by chart~::r amendment ------------------------------------26'7 Arrest, power of, without city limits ..............................................................267 Assessments on public property, power to levy -----------------------------------------268 Assessments on school property ------------ 1)"9 Bonds, official, in whose favor issued ----------------------274 Charter: Granted by legislature ---------------------------------------------------269 Town of Geneva -----------------------------------------269 Home Rule, Constitutional provisions for ----------------------------------------271 Hospitals: Joint Authority: More than one political subdivision may form ......................................272 One political subdivision may not bind another -----------------------272 Livestock, charter provision for control legal ..............................................604 Mayor pro tern., authority of .........................................................................273 Public propHty, power to levy assessments ..................................................268 Revenue anticipation certificates, issuance ..................................................275 Taxation: Agents in interstate commerce ..................................................................276 Airport included in general tax purposes ................................................275
NATIONAL GUARD See Public Defense
NOTARIES PUBLIC Applications, signatures to citizens certificate ............................................605 Marriages, commercial notary may not perform ........................................605 Powers of .......................................................................................................276 Seal, not required on attestation of deeds ....................................................606
NURSES See Professions, Businesses and Trades
OCCUPATION TAXES See Public Revenue
OPTOMETRISTS See Professions, Businesses and Trades
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ORDINARIES See Courts
PARDONS AND PAROLES See State Board of Pardons and Paroles
PARENT AND CHILD Adoption:
Consent by minor illegitimate mother ........................................................615
Foreign born child, requirements ..............................................................278
Inclusion in petition of names of parents, etc...............................278, 613
Inclusion in Public Welfare Report of names of parents ........................613
Control by parent until majority ----------280
Majority, when attained ------280 Services of child of tender years ................................................................617
PENAL INSTITUTIONS Board of Corrections:
Credit on term -------------------287 Escaped insane prisoner, cost of return borne by ....................................284 Escaped prisoners, return of ....................................................................281 Executioner, need not be Georgia resident ...............:..............................281 Habeas corpus proceedings, costs ........................................,.....................285 Indeterminate sentence -----------~-----282 Sale to Government Departments of prison-made goods ...._...._................286' Well for prison camp, cost borne by ........................................................284 Camps, control of prisoners ............................................................................618
Extradition of prisoner --------------------------------619 Minors, when committed to State Penitentiary -------"-----'283 Punishment, corporal, prohibited ------------270 Training Schools:
Escapees, return of ----------.-----622 Quasi-educational ..........................................................................................620 Superintendent must receive persons properly committed .....................622 Sentence, date of commencement ......................................................_............ 609
PENSIONS
Blind and old age, residence is prerequisite -------------------------------288 Ex-Confederate Soldiers and Sailors:
Application for ................................................_: __________________________________________ 288
Eligibility for --------------------------------------289 Lunacy commitment, effect on prior payments -------------------------------623 State Department of Veterans Service, ownership of Welfare Fund __________625
Veterans Education Council, remains under Merit System -------------------625
PERSONS
Aliens, civil rights -------------------------------289 Citizenship, loss by conviction ..................................................................291 (2) Citizenship, residence period ..........................................................................292 Citizenship, restoration of ....................:......~----'-:........292
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Imprisonment for debt forbidden ----------------------626 Minors:
Corporal punishment of employees by manufacturing establishments prohibited ........................................................................ 70
Pardons may be granted to guilty persons under 16 years of age ............626 Parental control --------------------280 Pool rooms, when may be admittc::d ............................................................ 78 Responsibility for criminal acts .................................................................. 72 State Penitentiary, when committed to -----------------------------283 Under 14 years of age, Warm Springs Foundation
may not employ -------------------------------------------574
PHARMACISTS See Professions, Businesses and Trades
PHYSICIANS See Professions, Businesses and Trades
PRIMARY ELECTIONS See Elections
PRISONS AND PRISONERS See Penal Institutions
PROFESSIONS, BUSINESSES AND TRADES Accountants: License required -------------------------------------------------293, 294 Mec::ting, call upon request ..........................................................................294 State Board, relinquishment of membership ----------------------------------214 Attorneys:
Alien, eligibility of -----------297 Bar examination, requirements for taking ....................................."---------295 Sheriff, may not be ....................................................................................627 Auctioneers, license requirements --------------------------------------,---------,--------628 Barbers and Hairdressers: Apprentices, charge by individual instructor -----------------------------------297 License rc::quired for work at home ------------------------------------------------------------628 Separation of schools and shops -----------------------------------------------------------.--298 Businesses: Air rifles and spring guns, sale not regulatc::d -------------------------------------302 Annual registration required -------------------------------------------------------------------303 Arms and ammunition, graduated tax ------------------------------------------------299 Blind persons, no exemption from ad valorem tax -----------------------314 Carbonic acid gas tax, applicable to veterans --------------------6'32 Heating contractors, deposit of collected funds by Board ---------------------631 Legless persons not exempted from municipal tax ------------------316 Mail order business, requirements for -----------------------------------316 Motion picture shows, educational, exemption ------------------------------305 Occupational tax
Sale over radio, not subject to --------------------------------------------313
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Collection agents, subject to --------------------------- ----------------313 Book agents, subject to --------------------312 Plumbing, etc., contractors, license tax ------------------------------307 Rolling store tax, collection ---------------------------------------------632 Veterans License Exc;;mptions: Ad valorem tax, not exempt -------------------------------------------------------------303 Municipal license tax, disabled veterans
c;;xempt -------------------- 300, 301, 307, 308, 309, 311, 313, 315 Personal to veteran operating as individual ____:_________________________________________ 631
Refunds of license taxes -------------- ----------------------------------------------303 Rolling Store Tax:
Veteran not exempt ----------------------------------------------------------------315 Provisions of act -----------------------------------------311 Solicitation of dry cleaning by veteran, where work done by others ........629 State, county and city, laws governing ------------------------309 State exemption not restricted as to number of businesses -----------306 State exemption includes county licenses under statutory authority -------------------------------------------------------------299 State exemption pr,ovisions --------------------------------------------308, 311, 315, 317 Chiropractors: Educationa! requirements _______________.. - ___ .... ____ ----- _. - ---- _________ - ----- __ --- .318
Licc;;nse under comity rules ------------------------------321 Dental hygienists, license requirements -----------------633 Dental nurses, Examiners to prescribe requirements -------------322 Detective agencies, fees and residence requirements -------------------634 Medical practitioners, members of State Board, how appointed ------323 Nurses:
Board of Examiners: Appointment of persons connected with nursing schools, prohibition repealed ---------------------324 Certificate, when required -----------------324 Certificatt, when dispensed with ............................................................324 Fees and expenses while attending Board meetings --326 License, granting of, not delivery, confers right to practice -----326
Credit on transfer ---------------------------------------------------------------------------635 Optometrists:
Material properly includible in applications ----------------------------------------------327 Powers, affirmative, not delegable ----------------------------------------------------------328 Powc;;rs, investigative, delegation to member ------------------------------------------328 Osteopaths, filing of prc;;scriptions of ----------------------------------------------------------329
PROFE:SSIONS, BUSINESSES AND TRADES
Pharmacists:
Alien may not be licensed -------------------------------------------------------------------------330
Alien may take examination for --------------------------------------------------------------330
Prescriptions for osteopaths -------------------------------------------329 Sale of ''dangerous drugs" by others than -----------------------------------------------331
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Photographers:
Act regulating is unconstitutional --------------------------------------------332
Plumbing, etc., general contractors, license ------------------------------307
Real estate brokers:
1
Bond:
Change of location does not n~::cessitate ---------------------------637
Former member of partnership, bond required -----6'38
Examination on failure to make timely renewal application -------638
Ownership of licenses issued to firms for broker -------332
Submission to Commission of subdivision plans ---------635
Unlicensed individual, offering of property owned by another ----636
PUBLIC DEFENSE Adjutant General: May dismiss summarily employee of Military Department ____________________334
National Guard:
Drill, enforcement of attendance ----------------------------------336 Exemption from duties ------------335 "Special Pay Members" -----------------------335
J>UBLIC FINANCE
Bonds, proceeds how used -----------------------------------------------------------------------337 Counties:
Temporary loans, limitation does not include bonded indebtedness ______641 Words "from taxes collected by any county" does not include
gasoline taxes ---------------------------------------------------------641 St. Simon's District:
Bond may be issued for constructing roads --------------------------------------------639 County authorities may construct roads within ------------639 Revenue anticipation certificat~::s for constructing roads
may not be issued -------------639 Temporary indebtedness, emergency, State authorized to incur ................642
PUBLIC HEALTH
Autopsy, permission for ---------------------------------------338 Gounty Boards, oath of ex-officio members ------------------------644 Dead animals, removal from State ------------------------------_421 Eugenics, provisions affecting State Board Hospitals:
Construction, authority of Public Health authorities to contract for......340
Federal funds, receipt and transmittal -------------------------------------340
Indigent patients, who are -------338 Private Hospitals:
No specific legislation r~::garding -------------------------------------339 Payment <>f Federal funds to, prohibited -----------------------------341 Pay-Supplements ----------------------------------------------644 Pre-Marital laws:
Certificate, where applicant unable to pay -----------------------645 Forms, distribution is duty of Department --------------------------------------------649
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License issued before effective date valid without examination ___________:646'
Osteopath, certificate not acceptable --------------------------------------------------------648 Certificate of another State, when acceptable ----------------------------------647 (2) Sanitary regulations, not applicable to rentals of mattresses -----------------------649 Vital Statistics: Death Certificates:
By whom signed ------------------------------------------------------------------------------------342 Osteopath may not issue ------------------------------------------------------------------------652 Legitimation, new birth certificate issued ------------------------------------------------342 Stillborn infants, certificate signed by whom ___________________:______________________342 Water Improvement Advisory Committee, expenses of members __,_________ 653
PUBLIC OFFICERS Age requirement 21 years ----------------------------------------------------------------------------343 Quo warranto, test of right to office by ----------------------------------------------------344
PUBLIC PROPERTY Alienation, restrictions on ------------------------------------------------------------------------------655 Assessments: Immunity of State from suit upon .:---------------------------------------------------------344 Legislative authority required for payment --------------------------------------------347 Power of municipality to levy ------------------------------------------------------------------268 State Highway Department may not reimburse municipality for paving ------------------------------------------------------------------------------------------------347 Condemnation proceeding, attorney's fees ----------------------------------------------------348 Easem*nts: Grant to power company for use of State Prison -----------'------------------------349 Permanent, may not be granted ----------------------------------------------~----------230 Expenditures on lease, credit, how authorized --------------------------------,-656 Improvements to property to which 5tate does not hold title .........,.......... 655 Interdepartmental transfer --------------------------------------------------------------------657 Sale: "Serviceable", legislative authority required ----------------------- ___________________656 "Unserviceable", Governor may authorize ----------------------------------------------349 State Hotel Properties Commission, credit of lessee's expenditures __________ 656 Use by foreign forces ---------------------------------------------------------------------------------'--6'54 Warm Springs Memorial: Concessions, operation on park site ------------------------------------------------------------350 Contracts for photographs ------------------------------------------------------------~-----------354 Funds, how handled ---------'------------------------------------------------------------------------352 Lease or loan of firtfighting apparatus -------------------------------------------'351, 353
PUBLIC REVENUE Ad Valorem Tax: Automobiles purchased for disabled veterans ---------------------------------------360 Agricultural products: Exemption: Constitutionality --------------------------------------------------------------------------------657 Length of time --------------------------------------------------------------------------'------658
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Arbitration, valuation applicable only to year in which made ............660
Chickens raised as business ----------------------------------------'-------------------------------661
Fi. fa. in rem, where owner unknown ------------------------------------------------------661
Housing authority vehiclE:s exempt ---------------------------------------"'-------------659
Industrial exemptions ----------------------------------------------------------------------------------659 Insurance companies, dismissal of proceedings ---------------------------------------357
Livestock, situs for taxation ----------------------------------------------------------------------361
Non-resident company liable ----------------------------------------------------------------------372
Redemption period --------------------------------------------------------------'-----------355 Release from tax of encumbered portion of propE:rty -------------------------356
Serviceman, acts indicating choice of domicile --------------------------------359, 361
Welfare benefits, limitation repealed --------------------------------------------------------357
Business licenses, salesmen of nonresident companies ------------------------------3 72
Counties:
Taxing power:
ExcisE: tax on gasoline --------------------------------------------------------------------------662 Fire protection, taxes to supplement State funds --------------------------------6'63
Tfmber, standing, may not be separately taxed --------------------------------662 Estate tax on Georgia property of non-resident alien ..............................664
Farm gas tax, on refund on Jeep tractors -----------------------------------------------665 Homestead Exemptions:
American Legion Posts, no constitutional exemption ............................668
Apartment houses not exempt ---------------------------------------------------------------667
Application, time limit for ------------------------------------------------------666 Assesst':d value, exemption deducted from ----------------------------------------669
Bonded indebtedness, not applicable to --------------------------------------------------3 6'7
Business purposes, use of property for --------------------------------------------3 65
County schools, taxes levied for ---------------------------------------------------------------362
Duplex, owner entitled to ----------------------------------------------------------363 Joint Owners:
One exemption only --------------------------------------------------------------------------------666
Share in exemption ----------------------------------------------------------------------------------365
Permanent residence, applies only to ------------------------------------------------------366
Proportion to be occupied as residence ----------------------------------------------------368
Refund of payment made for serviceman ------------------------------------------------369
Right of possession of applicant ------------------------------------------------------------------370
School taxes, municipal, not covered by ----------------------------------------364, 367
Serviceman, refund of payment made for ------------------------------------------------369 Income Tax:
Additional assE:ssments:
Disallowance of salaries ------------------------------------------------------------------------673
Limitation on -------------------------------------------------------------------------------------------677 British corporation deriving income from Georgia .................................. 6'76
Exemptions:
Head of family -------------------------------------------------------------------------------------674 Age of child determined as of close of taxable year............................ 672
Foreign shippers maintaining warehouse in Georgia ..............................675
Joint Federal tax, who may take deduction ................................................373
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Non-resident companies with warehouse in Georgia --------------------------------372 Non-resident individual, stock dividends and personal
service incom, exempt ----------------------------------------------------------------------------371 Recapture by Federal Government ------------------------------------------------------------374 5cheduled air-mile basis, time for rejection --------------------------------------------376 Veterans:
Abatement upon death in service --------------------------------------------------------670 Overpayment by failure to take exemption ----------------------------------------670 Industrial ex~mptions prohibited --------------------------------------------------------------------378 Intangibles Tax: Accommodation endorser with security --------------------------------------------------678 Accommodation endorser without security ------------------------------------------------679 Debentures, subject while benefits held ----------------------------------------------------681 1949 amendment, Building and Loan Associations ----------------------------------680 Kerosene tax not applicable to motor fuel ----------------------------------------------------379 Motor Fuel Tax: Bonded distributor, no refund on retail stores ----------------------------------------683 DiesE:l engines ------------------------------------------------------------------------------------------682 Penalty and interest: Within Commissioner's discretion -------------------------------------------------------681 Do not become part of tax ---------------------------------------------------------------681 Retailers Refunds: Sales on commission for wholesaler --------------------------------------------------684 Time when made -----------------------------------------------------------------------------------682 Motor Vehicle License Tax: Capacity of truck, not specified, applicable rate ----------------------------------685 Drive-It-Yourstlf system not common or contract carrier --------------------684 Dump trucks on highways --------------------------------------------------------------------------688 "For Hire" plates, parcel delivery company not liable --------------------------686 Military reservation carriers, taking on and discharge of passengers......689 Municipalities., additional license tax by is invalid ---------------------------""--688 Parcel delivery company not liable for "For Hire" plates --------------------686 South Carolina reciprocal agreement ------------------------------------------------------380 Occupation Tax:
Carbonic acid gas tax is lic,nse tax ----------------------------------------------------------690 Ice cream, manufacturers and wholesalers ----------------------------------------------692 Personal property exemption, to what taxes applicable --------------------------694 Proration ------------------------------------------------------------------------------------------------------693 Radios, coin-operated ----------------------------------------------------------------------------------692 Sales and use taxes, none enacted ------------------------------------------------------------381 Stamp Tax:
Chain store, no discount on tobacco stamps ----------------------------------------695 Unstamped tobacco, procedure --------------------------------------------------------------696 State Department of Revenue witness fees and mileage ------------------------382 Tax Collectors: Commissions:
Based on net digtst ---------------------------------------------------------------------------385 School taxes ---------------------------------------------------------------------------------------382
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When payable --------------------------------------------------------------------------------------697 Failure to consolidate office, Union County --------------------------------------------383 Fees on executions by outgoing collector ------------------------------------------------384 Liability of outgoing collector ------------------------------------------------------385 Tax Receivers: Insanity adjudication creates vacancy ......................................................698 May serve as Clerk of Board of Assessors ..............................................699 Returns, where received ............................................................................699 Tax Sales: Redemption statute, 1935 Act as to municipalities not
repealed by ..............................................................................................389
PUBLIC SAFETY Butane Gas: No specific regulations regarding ..............................................................390 Storage within city limits not prohibited ..................................................391 Department of Public Safety: Building codes ..............................................................................................700 Dynamite, sale ............................................................................................704 Fees and expenses of members ..................................................................396 Inspection of property, duty of Building Safety Council ........................394 Right-of-Way regulations fixed by ..........................................................392 School bus, stop for loading ......................................................................705 Stop signs, blanket order insufficient to convict ......................................706 Warm Springs Road, special speed limits ................................................706 Traffic Violations: Bail, provisions for ................................................................................393 Fee for arrest ..........................................................................................393 First offense, no minimum fine -------------------------------------------------396 Punishable how ........................................................................................391 Drivers Licenses: Honorary drivers licenses, who eligible ........................................707, 708 Military personnel ....................................................................................391 Motor Vehicle Responsibility Act: License, revocation of, effect of discharge in bankruptcy ..................................................................................398 License revocable for non-payment of judgment ............................399 Prior unsatisfied judgment ................................................................708 Firearms: BB guns, no regulation or supervision ....................................................397 Pistols, license required to carry ..............................................................712 Sale, use and possession ..............................................................................397 Georgia Bureau of Investigation: Arrests, duty to assist ................................................................................713 "Numbers" business, arrest upon suspicion ..............................................713 Police power, general, does not possess ....................................................713 Georgia State Patrol, hearing before discharge ..........................................714 Safety Appliances: Directional signals not specifically regulated ..........................................400
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Page
Drag chains on gasoline: and kerosene trucks not required ....................400 Safety chains on trailers not required ......................................................400 Speed limits, penalty ......................................................................................390 Spotlights, no specific prohibition ................................................................401
PUBLIC SCHOOLS See Education
RAILROADS Air rights ........................................................................................................402
ROADS, BRIDGES AND FERRIES State Highway Department: Actions by or against non-residents ........................................................402 Commission meetings, where: held ..............................................................405 Contracts: Properly authorized and orally confirmed ............................................716 Prohibition against execution under given circ*mstances ..................403 Reciprocal Commission, restriction on agree:ments ............................717 Supplemental, restriction on cost and extent ......................................719 Reimbursem*nt: Countie:s for unused roads, not restroactive ........................................407 Municipality for paving, prohibited ......................................................348 Streets of municipality, part of State Aid System ..................................409 Taxes, Limitation on rate ................................................................................408
SECRETARY OF STATE See Executive Department
SENTENCES See: Criminal Procedure
SHERIFFS See Courts
SLOT MACHINES See Crimes and Punishment
SMALL LOAN COMPANIES See Banks and Banking
SOCIAL WELFARE Blind, Factory for: Workmen's .Compensation Act applicable: ................................................ 7.20 Child labor, provisions regarding..................................................................410 Handicapped persons, no statutory provision for employment ..................412 Old-age assistance records, provision for disclosure safeguards ................720 State DepartmE:nt of Public Welfare: Contributions for benefits, remedy for failure to make ........................728 Duty to purchase care for children from Federal funds ........................732 Handicapped childre:n, obligation to offer special services ....................730 Minor child, assistance in return to Georgia for relief purposes ............728 Milledgeville Nursing School, notification of closing ..............................414
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Regulation of State Agencies by county prohibited -------------------------------.412 Welfare benefits, tax limitation removed ...................................................-411 Welfare directors, by whom appointed .;...................................................... 720
STATE BOARD OF CORRECTIONS s~e Prisons and Prisoners
STATE BOARD OF EDUCATION See Education
STATE BOARD OF HEALTH See Public Health
STATE BOARD OF PARDONS AND PAROLES Arrest of parolees illegally released ............................................................ 608 Computation of sentenc~ ----------------------------------------609 Conditional probation ---------------------------------------------609 Delegation of authority of Board -------------------------------------------------612 Eligibility for parole ------------------------------------609 Judicial Council has no authority to investigate ---------------------------------.415 Members, subsistence, etc...............................................................................415 Minor und~r 16 may be granted pardon ...................................................... 626' Releas~ at expiration of minimum term ........................................................ 611 Revocations of conditional pardons ..............................................................610
STATE BOARD OF PUBLIC WELFARE See Social Welfare
STATE DEPARTMENT OF VETERANS SERVICE War Veterans Childr~n Education Act unconstitutional ............................417
STATE GAME AND FISH COMMISSION See Game and Fish
STATE HIGHWAY DEPARTMENT See Roads, Bridges and Ferries
STATE PARKS See Forestry and Geology
STATE PORTS AUTHORITY Contracts: Insurance ........... _____ ...................................................................................... 41 B Lease of lands ............................................................................................419 Sale to State Department of real property ------------------------------------733
STATE SUPERINTENDENT OF SCHOOLS See Education
STOCKS AND STOCKHOLDERS See Banks and Banking
SUPERIOR COURTS See Courts
SUPERVISOR OF PURCHASES See Executive Department
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Page
TAXATION See Public Revenue
TEACHERS RETIREMENT SYSTEM See Education
TORTS State Highway Department, not liable for negligence of employees -------------------------------------------------------------------------------------------.421
TRADE NAMES Must be registered with Ordinary --------------------------------.421
UNIVERSITY SYSTEM OF GEORGIA See Education
VETERANS Bonus law, none enacted -------------------------------------------------------------------------------.422 Discharge: Copies, fee paid by applicant -------------------------------------------------------------------.423 Recording, fee paid by county -----------------------------------------------------------------.423
VETERANS EDUCATION COUNCIL Delegation of powers to Executive Committee ---------------------------------------.423 Meetings, when held --------------------------------------------------------------------------------------.423
VITAL STATISTICS See Public Health
WARM SPRINGS MEMORIAL COMMISSION Concessions, may operate on park site --------------------------------------------------------350 Easem*nts, may not grant --------------------------------------------------------------------------355 Firefighting equipment, use by others ------------------------------------------------351, 353 Funds of, how handled ----------------------------------------------------------------------------------352 Insurance, may not contract for --------------------------------------------------------------------57 4 Minors under 14, may not be employed by --------------------------------------------------574 Photographs, may contract for manufacture ------------------------------------------------354 Souvenirs, manufacture of ----------------------------------------------------------------------------354 Taxation, basis for exemption ------------------------------------------------------------------------57 6' Torts, liability on loan of equipment ------------------------------------------------------------351
WINE _ See Intoxicating Liquors
WORKMEN'S COMPENSATION Georgia Bureau of Investigation employees covered ---------------------------------.424 Jekyll Island State Park, operator must carry ----------------------------------------.425
